Jacob Bankole & Ors V. Amodu Tijani Dada (2002)

LawGlobal-Hub Lead Judgment Report

MORONKEJI OMOTAYO ONALAJA, J.C.A. 

The original plaintiff, ALHAJI BISIRIYU SULE for himself, and on behalf of IKOTUN and MATORI Families of IYESI OTA, died whilst the appeal was pending in this court, and on 26th November, 2001, by leave of court, granted prayer to substitute the deceased with AMODU TIJANI DADA, RASAQ ADEBOWALE OWOLOLA, MOROOF AKANBI OBI and MUBEEN ADEYEMI TALABI for deceased ALHAJI BISIRIYU SULE, as plaintiffs for IKOTUN and MATORI FAMILIES, sued at ILARO High Court III defendants but two of them died during trial, in the High Court and remained Michael Aina for Isidana Family of IYESI, OTA, Ogun State-who also died during the pendency of the appeal in this court. On 21st February, 2002, with leave of court was substituted with JACOB BANKOLE (2) TAOFIK AKINDE and (3) EZEKIEL BANKOLE as defendants/appellants in this court for deceased Michael Aina for himself and Isidana Family of IYESI.

The action was commenced at ILARO High Court, but concluded at Sagamu High Court by order of transfer of Ogun State Chief Judge, under the High Court (Civil Procedure) Rules. During the trial, two of the defendants died and were struck out, leaving one defendant at the completion of trial.

The writ of summons was served originally on the three defendants, before the deaths of two of the defendants. After service of the writ of summons on the defendants, pleadings were filed, delivered, exchanged and amended several times with the result that at the completion of trial plaintiffs relied on 3RD FURTHER AMENDED STATEMENT OF CLAIM, whilst defendant relied on FURTHER AMENDED STATEMENT OF DEFENCE. Prior to filing of the further amended statement of defence, the plaintiffs already filed a reply to the amended statement of defence without filing a further reply to the further amended statement of defence.

Applying the cases of Chief J.O. Lahan & Ors. v. Lajoyetan & Ors. (1972) 6 SC 190, (1972) 1 All NLR (Pt.2) page 217, (1972) SCC 460, (1973) 1 NMLR page 44; Udechukwu v. Okwuka (1956) 1 FSC 70 at 71 (1956) SCNLR 189; M.A. Enigbokan v. American International Insurance Co. Nig. Ltd. (1994) 6 NWLR (Pt. 348) page 1 at 19 SC all applied and followed in Egbulefu Onyero & Anor. v. Augustine Nwadike (1996) 9 NWLR (Pt. 471) page 231 at 239-240 CA that is now axiomatic that a statement of claim when filed supersedes the writ of summons and must itself disclose a good cause of action. Accordingly, the claims of the plaintiffs are as set out in the concluding paragraph 30 of the further amended statement of claim referred to in this judgment simply as the statement of claim and the further amended statement of defence as statement of defence and the reply filed simply as reply. Paragraph 30 of the statement of claim reads or states as follows:-

“30 WHEREOF the plaintiff claims against the defendant as follows:-

1. A declaration that the plaintiff is entitled to a statutory right of OCCUPANCY over all that piece or parcel of land situate, lying and being at IYESI Village, Ota, Ogun State, which is clearly delineated blue on the survey Plan No.SEW/W/2496/4 dated 8th May, 1984. Annual rent of said land being N100.00.
2. A declaration that by refusing to pay customary tribute and by claiming ownership of the piece of land, which the defendants hold of the plaintiff as customary tenants of the plaintiff, the defendant have thereby, forfeited their interest as customary tenants to the plaintiff annual rent of said land being N100.00.
3. Possession of the said parcel of land in dispute.
4. Perpectual (sic) perpetual injunction to restrain the defendants, their agents or assigns from encroaching on the said parcel of land.”

The defendant joined issues with the plaintiffs in paragraph 35 of the statement of defence that:-

“35 The defendant further avers that the plaintiff and his family have no right claim or title to the land in dispute save for the area edged BLUE in survey plan attached thereto.

WHEREOF:- The defendant avers that the plaintiff’s claim is frivolous, speculative, vexatious and constitute an abuse of the process of the court and ought to be dismissed with costs.”

By the above averment, defendant joined issue with plaintiffs under the rule in Lewis & Peat (NRI) Ltd. v. A.E. Akhimien (1976) 7 SC 157; Chief Mrs. F. Akintola v. Mrs. C.F.A. Dedeke Solano (1986) 2 NWLR (Pt. 24) page 598 SC.

To establish his case, plaintiff testified for himself as 1st PW and called five other witnesses, who in the course of their testimonies tendered documentary evidence marked as exhibits, references shall be made to the exhibits in the course of this judgment. All the six plaintiff’s witnesses were cross-examined by the learned Senior Counsel for the defendant.

In defence of the action, the defendant testified for himself during which documents marked as exhibits were admitted. Apart from himself defendant called 6(six) other witnesses through some of whom tendered documents were marked as exhibits, references shall be made to them when considered relevant in this judgment. The defendant and his witnesses were thoroughly cross examined.

Upon completion of testimonies at the trial learned Senior Counsel for the defendant and learned Counsel for the plaintiffs, addressed the learned trial Judge exhaustively after which the learned trial Judge on the 19th day of December, 1994, delivered his judgment covered at pages 300 to 326 of the record of appeal wherein at page 325 the learned trial Judge concluded his judgment thus:-

“The plaintiff has therefore, proved his claim before this court on the preponderance of evidence. Therefore, the court granted all the declarations and reliefs sought by the plaintiff.”

The defendant obviously was dissatisfied with the said judgment he timeously lodged an appeal to this court by filing notice of appeal at pages 327 to 330 of the record of appeal. Defendant formulated 9 grounds of appeal which with the leave of this court in the amended notice of appeal he raised grounds, A, B, C, D, E, F, G, H, I, J and K. Defendant in accordance with the rules of this court, he furnished and supplied the particulars. Defendant caused both the notice of appeal and the amended notice of appeal to be served on the plaintiff. Henceforth, the defendant is referred to in this judgment as APPELLANT whilst the plaintiffs are referred to from now in this judgment as RESPONDENTS.

Appellant then proceeded to file his appellant’s brief of argument and formulated the under mentioned issues based on the grounds of appeal this was in compliance that issues for determination must be based on and correlate with the grounds of appeal, whilst an issue for determination may encompass one, two or three grounds of appeal in one issue for determination, the issues formulated must not be more than the grounds formulated by appellant in the notice of appeal, where more issues are formulated more than the grounds of appeal, the Supreme Court and this court frown and deprecate proliferation of issues. Appellant and respondents complied with the laid down rules of brief writing in this court. Appellant filed his brief of argument with leave of this court on 8th November, 2000, wherein at page 8 paragraph 6 he distilled from the grounds of appeal the under mentioned issues for determination thus:”

6.00 ISSUES FOR DETERMINATION

6.01 In the respectful opinion of the appellant the following are the issues which arise for determination in this appeal

1. Whether the High Court of Ogun State has original jurisdiction in proceedings in respect of land situate at Iyesi village, near Otta, which is a rural area and when there is a Customary Court in the locality. This issue covers ground J of the grounds of appeal.
2. Whether the learned trial Judge owing to the inordinate lapse of time between when hearing commenced and the delivery of judgment had not become a complete stranger to the facts of the case and was consequently not in a position to form a proper view of the credibility of the witnesses on the most vital and contested issues. This issue encompasses ground B, D, E, F, G, I and K of the grounds of appeal.
3. Whether the learned trial Judge was right in relying on and making use of evidence in another proceedings to demolish the defendant’s case other than as provided by law. This issue arises from ground C of the grounds of appeal.
4. Whether the various amendments to the writ and the statement of claim granted by the learned trial Judge, were not intended to over reach and did not occasion a miscarriage of justice against the defendant. This issue relates to ground H.
5. Whether the learned trial Judge was right in granting the reliefs claimed in favour of the plaintiff for himself and on behalf of Ikotun and Matori families, without tendering the power of Attorney allegedly granted to the plaintiff by the families and when by the plaintiff’s showing his family had granted the land in dispute to other persons. This issue relates to ground A.

Appellant caused appellant’s brief of argument to be served on the respondent, who filed respondents’ brief of argument on 10th May, 2000, having complied with the rules of brief writing when he distilled from the grounds of appeal the undermentioned issues for determination at page 3 paragraph 3 as follows:-

“3. ISSUES FOR DETERMINATION

The Respondent respectfully would formulate the issues for determination as follows:-

(a) Whether the High Court of Ogun State, has original jurisdiction in respect of proceedings for a declaration of title to a statutory right of occupancy over land situate at Iyesi near Otta.

(b) Whether there was inordinate lapse of time between when hearing commenced and the delivery of judgment such that the learned trial Judge could have become a stranger to the facts of the case and was consequently not in a position to form a proper view on the credibility of the witnesses on the most vital and contested Issues.

(c) Whether the learned trial Judge relied on and made use of evidence in previous proceedings other than as provided by the law.

(d) Whether the various amendments to the writ and statement of claim granted the respondent by the learned trial Judge were not intended to overreach and did not occasion a miscarriage of justice against the defendant.

(e) Whether the learned trial Judge was right, in granting the reliefs claimed in favour of the plaintiff for himself and on behalf of the Ikotun Matori Family without tendering the Power of Attorney allegedly granted to the plaintiff.

After service of respondents’ brief of argument on appellant he filed a reply brief to respondents’ brief of argument, on 14th day of August, 2001.

Issue 1 in appellants’ brief of argument and also issue 1 in respondents’ brief of argument challenged the jurisdiction that High Court lacked jurisdiction under Section 41 Land Use Act, 1978, as lying being a village was in rural area which Section 41 gave exclusive jurisdiction to Customary Court in the area for grant of customary rights of occupancy by the LOCAL GOVERNMENT in which the land is situate.

In Issue 1 respondents’ brief of argument, submitted that the claim before the court was for statutory right of occupancy. In short, the two issues raised as contended by appellant that the High Court lacked original jurisdiction under Section 41 Land Use Act, 1978, whilst respondent pressed that the High Court has jurisdiction as the claim was for statutory right of occupancy.

Issue 5 in appellants’ brief of argument impeached the locus standi of respondent as the power of attorney allegedly granted to the respondent by the families was not produced. Issue 5 in respondents’ brief of argument raised similar question that the respondent without tendering of the power of attorney the, respondents still had the locus standi.

Once the issue of LOCUS STANDI being a threshold question coupled with issue of jurisdiction raised the matter of the competence of the action as this goes to the root of the action it must be considered first before any other issue in Gabriel Madukolu & Other (for themselves and on behalf of the UMUONALA FAMILY) v. Johnson Nkemdilim (1962) 2 SCNLR 341 the Supreme Court stated and was held at page 348 as follows:-

“I shall make some observations on jurisdiction and the competence of a court. Put briefly a court is competent when:-

(1) it is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and

(2) the subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.” Akande v. Alagbe (2000) 15 NWLR (Pt. 690) page 353 SC; Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) page 116 SC.”

In Lawrence Elendu & Anor. v. Felix Ekwoaba & Ors. (1995) 3 NWLR (Pt. 386) at pages 704, 740, 741 and 742, it was held that the term locus standi denotes legal capacity to institute proceedings in a court of law Adesanya v. President, Federal Republic of Nigeria (1981) 2 NCLR 358 referred to and applied.

The principles governing determination of existence of locus standi was stated in A.-G. Kaduna State v. Hassan (1985) 3 NWLR (Pt. 8) page 483 SC as follows:-

“In determining whether a person has locus standi or not the following factors are guidelines:-

(a) For a person to have locus standi in an action, he must be able to show that his civil rights and obligations have been or are in danger of being infringed;

(b) The fact that a person may not succeed in an action does not have anything to do with whether or not he has a standing to bring that action;

(c) Whether a person’s civil rights and obligations have been affected depends on the particular facts of the case;

(d) The courts should not give an unduly restrictive interpretation to the expression locus standi.

There are two tests used in determining the locus standi of a person namely:-

(a) the action must be justifiable

(b) there must be a dispute between the parties.”

In ‘K’ Line Inc. v. K.R. Int. (Nig) Ltd. (1993) 5 NWLR (Pt.292) page 159 at 176 judicial meaning of locus standi –

“the legal right of a party to an action to be heard in a litigation before a court of law or tribunal. The term entails the legal capacity of instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever, including the provisions of any existing law.”

It is trite law and common ground between the parties as stated in appellants’ brief and respondent’s brief that, the determinant factor in our civil process were the writ of summons and the statement of claim. In the instant appeal, respondents headed his statement of claim thus:-

“ALHAJI BISIRIYU SULE (for himself and on behalf of the IKOTUN AND MATORI FAMILIES OF IYESI OTA, OGUN STATE) AND MICHAEL AINA (Sued for himself and as representatives of the ISIDANA Family of IYESI, OTA, OGUN STATE) and pleaded and averred in the undermentioned paragraphs of the statement of claim as follows:-

“(1) The plaintiff is the head of the Ikotun and Matori families of Iyesi, Ota, Ogun State and sues for himself and on behalf of the families.

(2) The defendant resides at Isidana quarters of Iyesi Ota Ogun State.

(3) The plaintiffs are owners of the land in dispute lying and being at Iyesi and more particularly, described in Plan No. SEW/W/2496/4 and edged BLUE lying within the portion edged RED also owned by the plaintiffs.

(4) The plaintiffs are the traditional owners of vast parcels of land, including the land in dispute and bounded.

(5) The said land originally belonged to the plaintiff’s great grandfather Olakoru, a hunter and warrior, who came from the Ikotun household in ILE IFE and first cultivated the land.

(24b) The plaintiff avers that the IKOTUN and MATORI Families gave defendants the land in dispute as customary tenants.

(30) WHEREOF the plaintiff claims against the defendant as follows (supra).

From the averments in the statement of claim supra, respondents raised justiciable issues and a dispute as between respondent and appellant as a customary tenant.

The complaint of the appellant being that as 1st plaintiff/respondent who testified as 1st PW failed to produce the power of attorney he therefore, lacked the locus standi. On representative action at page 135 COMMENTARIES FROM THE BENCH PART II on the topic PARTIES TO CIVIL ACTION by ONALAJA, JCA it was stated as follows:-

“Where a plaintiff or plaintiffs institute action in a representative capacity, there is the school of thought that the leave of the court is required. With respect, I consider the leave superfluous, the duty of such plaintiff is to describe his capacity in the writ and to plead that capacity as a material fact in the statement of claim.

But where the plaintiff requires that the action be binding on the defendant in a representative capacity then the leave of the court is required to sue the defendant in a representative capacity. This is without prejudice to the fact that the capacity still has to be pleaded in the statement of claim.”

After careful consideration of the arguments proffered by appellant and respondent especially the averments in the statement of claim respondent established legally and validly that he had justiciable controversy against appellant.

Justiciable was defined and held in Elendu v. Ekwoaba’s case (supra):-

“(12) ON MEANING OF JUSTICIABLE means a controversy or matter in which a present and fixed claim or right is asserted against one who has an interest in contesting it, rights must be declared upon State of facts that may or may not arise in future. A question that may properly come before a tribunal for decision. Courts will only consider a “justiciable” controversy, as distinguished from a hypothetical difference or dispute or one that is academic or moot. Term refers to real and substantial controversy which is appropriate for judicial determination as distinguished from dispute or difference of contingent hypothetical or abstract character.

(13) No formula generally applicable has been provided by legislation. However, no clear answer can possibly be given which would suit all cases and be certain not to exclude persons who should be let into the Court. The Judges have therefore been careful not to tie hands by an exhaustive definition of locus standi. They proffered a general, vague and flexible expression which leaves them with a wide discretion. They require the plaintiff to have an interest or more accurately sufficient interest in the proceedings.”

Applying the above to the instant appeal, respondent established that there were justiciable issues and dispute between the parties’ failure to produce the power of attorney was as to success or failure at the trial which did not deny respondent the locus standi. Oloriode v. Oyebi (1984) 5 SC 1, (1984) 1 SCNJR 390; Owodunni v. Reg. Trustees of CCC (2000) 10 NWLR (Pt. 675) page 315 SC. Issue 5 in appellant’s brief of argument is resolved against appellant as unmeritorious as non-production of the power of attorney did not vitiate the locus standi or respondent’s sufficient legal interest.

As locus standi is intertwined to competence of the action and jurisdiction this aspect is going to be based on the judgment of this court and the Supreme Court on the interpretation of Section 41 LAND USE ACT and the provisions of the jurisdiction of the High Court as provided in 1999 Constitution of Nigeria. The Court of Appeal case was decided on 20th April, 2000 and reported as Raimi Akande & Two Ors. v. Busari Alagbe & Anor. (2000) 15 NWLR (Pt.690) page 353 pages 355, 379 and 387, this court considered Section 41 LAND USE ACT along with Sections 1(3),272(1),273 and 315(1)(4)(5)(6) of the Constitution of the Federal Republic of Nigeria. They respectively provide as follows:-

“41. An Area Court or Customary Court or other Court of equivalent jurisdiction in a state, shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Act; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a customary right of occupancy and all laws including rules of court regulating practice and procedure of such courts shall have effect with such modifications as would enable effect to be given to this section.”

“1(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation, or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

“273. For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that court.”

“315(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modification as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be –

(a) ………

(b) ………

(4) In this action, the following expressions have the meanings assigned to them, respectively.

(b) “Existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date.

(5) Nothing in this Constitution shall invalidate the following enactments, that is to say –

(d) the Land Use Act – and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of Section 9(2) of this Constitution.

(6) Without prejudice to subsection (5) of this Section, the enactments mentioned in the said sub-section shall hereafter continue to have effect as Federal enactments and as if they related to matters included in the exclusive legislative list set out in Part 1 of the Second Schedule to this Constitution.”

Wherein it was held.

11. On Whether the Land Use Act is an integral part of the 1979 Constitution –

Although, the Land Use Act, 1978, was an existing law as at 1st October, 1979, when the Constitution came into effect, and became entrenched into the Constitution by reason of the provisions of Section 274(5) thereof, it was not an integral part of the Constitution, its status being only an existing law and a Federal enactment and therefore, subordinate to the Constitution, (Nkwocha v. Governor of Anambra State (1984) 1 SCNLR 634 referred to.)

12. ONALAJA, JCA at page 379, para. C-F:

“Section 1(3) 1999 Constitution provides as follows:

(3) if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void.”

My understanding of the above being a Constitutional provision shall be given a liberal interpretation as laid down in Nafiu Rabiu v. The State (supra) that the Land Use Act not being an integral part of the Constitution comes within the provision of any other law under Section 1(3) 1999 Constitution, so any inconsistency with the provision in Land Use Act contrary to the Constitution shall to the extent of the inconsistency be void. By virtue of Section 272(1) the State High Court has unlimited jurisdiction. It is my understanding that Section 41 of Land Use Act delimiting the jurisdiction of the State High Court runs contrary to Section 1(3) 1999 Constitution and is to the extent of the inconsistency void and it is hereby, declared null and void thereby, I hold that the High Court has concurrent jurisdiction with the Customary Court and Area Court over right to customary right of occupancy.”

On Friday 23rd June, 2000, the full court of the Supreme Court pronounced on Section 41, Land Use Act without any reference made to the judgment of the Court of Appeal of Raimi Akande & Two Ors. v. Busari Alagbe & Anor. (supra) in the Supreme Court case reported as Alhaji Karimu Adisa v. Emmanuel Oyinwola & 4 Ors. (for themselves and on behalf of Ikolaba Chieftaincy Family) (2000) 10 NWLR (Pt. 674) page 116 at 127, 131 per Katsina-Alu, JSC at page 214 paras F-H.

“It is now clear and beyond any argument that Section 41 of the Land Use Act, 1978, cannot oust the unlimited jurisdiction of the State High Court as provided by Section 236 of the 1979 Constitution as amended. Besides, when the provisions of Section 39(1) and Section 41 of the Land Use Act are compared, it will be seen that while Section 39(1) vests “exclusive” jurisdiction in a State High Court in respect of proceedings relating to statutory right of occupancy, the word “exclusive” is conspicuously omitted in Section 41. I think it is where the intention of the legislators that only the Area Court or Customary Court should have original jurisdiction in respect of customary right of occupancy, the legislators would have clearly said so by the inclusion of the word “exclusive” in Section 41 of the Act just as they did in Section 39(1). I believe that the omission of the word “exclusive” is deliberate. The omission of the word was intended not to confer exclusive jurisdiction on Area Court or Customary Court. While in view of Section 236 of the 1979 Constitution, the provisions of Section 39(1) of the Land Use Act would appear to be a supplusage, Section 41 seems in order. Section 41, as I see it, was intended to confer some of the jurisdiction of the State High Court on Area Court or Customary Court.”

From the foregoing in view of the judgment of the full Supreme Court (supra) which under the rule of stare decisis is binding on me notwithstanding my previous decision prior to the judgment of the full Supreme Court, I hold and come to the irresistible conclusion that both the High Court and Customary Court or Area Court have concurrent jurisdiction over land, and issuance of customary right of occupancy that should the learned Counsel to the parties have adverted their attention to the Supreme Court and Court of Appeal judgments (supra) issue 1 challenging the jurisdiction would not have been pursued with vigour by appellant on issue 1 in appellant’s brief of argument is resolved against appellant as lacking in substance and unmeritorious. As at the time briefs of argument were filed and exchanged the two judgments were already delivered and reported in the law reports the conclusion is that the High Court with the Customary Court, have concurrent jurisdiction to adjudicate on land in respect of grant of customary right of occupancy. Appellant’s attack on the jurisdiction of the High Court over this case lacks substance and is unmeritorious. The appeal is dismissed based on issues 1 and 5 in appellant’s brief as devoid of any merit. Olisa v. Asojo (2000) 1 NWLR (Pt.747) page 13.

My next consideration is issue 4 in appellant’s brief of argument. I have adopted this procedure because the issue raised an aspect of our procedural law whether the grant of several amendments to the pleadings engendered miscarriage of justice as the grants were based on wrong principle of law thereby the learned trial Judge exercised his judicial discretion wrongly.

The bone of contention of appellant as submitted was that the stage at which further amendment was granted to respondent after the address of the learned Counsel to appellant was wrongful and meant to over reach and was granted at a very late stage of the proceedings more also as the same reasons were given as in the previous applications for amendments. The reasons were –

(1) to bring the writ and pleadings in line with the evidence adduced before this honourable court;

(2) to clearly define the issues in controversy between the parties;

(3) that discrepancies in the writ of summons and statement of claim were recently discovered by counsel.

Appellant opposed the last application for amendment after he had concluded his final address in that;

(1) both parties concluded their evidence as far back as 9/6/93;

(2) counsel addresses were concluded on 28/9/94 and judgment was adjourned to 2/11/94;

(3) the current application was intended to over reach as it was designed to deflate issues already highlighted in the address delivered by defence counsel.”

Appellant submitted that though Order 26 of the rules of court conferred very wide and unlimited discretionary power to grant the application for amendment by respondent in the instant case was wrongful exercise and engendered miscarriage of justice against appellant as decided in CMI Trading Services Ltd. v. Yuriy (1998) 11 NWLR (Pt. 573) page 284 at 301 CA that-

“For failure of the lower court to exercise its judicial discretion judicially and judiciously this appeal succeeds and it is allowed.”

Similarly, issue 4 in appellant’s brief of argument should be resolved in favour of appellant.

Respondent in his issue 4 of respondent’s brief of argument that to have a comprehensive picture of the grant of the amendment recourse was to Order 26 rules 1, 2 and 3 High Court (Civil Procedure) Rules provides as follows:-

ORDER 26

RULE 1. The Court or a Judge in Chambers may, at any time and on such terms as to costs or otherwise as the Court or Judge may think just, amend any defect or error in any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.

RULE 2. The Court or a Judge in Chambers may, at any stage of the proceedings allow either party to alter or amend his endorsement or pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties;

RULE 3. Application for leave to amend may be made by either party to a Judge in Chambers or to the Court at the trial of the actions and such amendment may be allowed upon such terms as to the costs or otherwise as may be just.”

Respondent submitted that Order 26 High Court (Civil Procedure) Rules has been interpreted to vest very wide judicial discretion in the trial Judge to grant or refuse the application. For the appellate court to interfere with the exercise of the judicial discretion the appellate court must be satisfied that the decision was not judicially and judiciously made which has led to miscarriage of justice – Odusote v. Odusote (1971) 1 ANLR 219; CMI Trading Services Ltd. v. Yuriy (1998) 11 NWLR (Pt. 573) at 284. A proper appraisal of the facts that led to the grants of the various amendments showed that the learned trial Judge exercised his judicial discretion when respondent did not oppose many of the amendments in the trial court. In the Appeal Court, appellant cannot be heard to oppose in the Appeal Court the amendment which were granted in accordance with the rules of court. Adeleke v. Awoliyi (1962) 1 SCNLR page 401; Akaneme v. Ozoemana (1993) 2 NWLR (Pt.275) 345 at 275 at 348.

The application for amendment after the address of appellant’s counsel was strenuously opposed by appellant after the Judge dutifully assessed the proposed amendments, were granted without injustice to appellant. Akinsanya v. Ajeri (1997) 12 NWLR (Pt. 531) at 99, 108, as where a party can be compensated in costs. The issue be resolved in favour of respondent as the amendments were granted without injustice to appellant.

Order 26 rules 1,2 and 3 High Court (Civil Procedure) Rules vested the trial Judge with judicial discretion to grant or refuse prayer for amendment of pleadings the judicial exercise must be entertained judicially and judiciously. The principle to guide the trial Judge on grant or refusal of amendment was the celebrated case of Cropper v. Smith (1884) CHD 700 at 710 wherein the basic principle was stated that leave to amend would be granted for the purpose of determining in the existing suit the real question or questions in controversy between the parties.

“It is well established principle that the object of the court is to decide the rights of the parties and not to punish them for mistake they make in the conduct of their cases by deciding otherwise than in accordance with their rights. I know of no kind of error or mistake which, if not fraudulent or intended to over reach, the court ought not to correct if it can be done without injustice to the other party.” Applied and followed in A. U. Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 All NLR (Pt. 1) page 409 SC; Bello Adeleke v. Falade Awoliyi & Anor. (1962) 1 All NLR 260 at 262; Alsthom S.A v. Saraki (2000) 14 NWLR (Pt. 687) page 415 SC; Oguntimehin v. Gubere (1964) 1 All NLR 176 at 179, (1964) NMLR 55 SC; Union Bank of Nigeria Plc. v. Mr. David Dafiaga (2000) 1 NWLR (Pt. 640) page 175 at 187 CA; Ita v. Dadzie (2000) 4 NWLR (Pt. 652) page 168 CA.”

Although, the Order 26 aforesaid says that leave to amend may be granted “at any stage of the proceedings before judgment.” It is very important to make an application for amendment as soon as the defect in the proceedings is known or detected, for if the application is unreasonably delayed it may be refused. The usual practice is for trial courts to grant applications to amend at any stage of the proceedings, if injustice will not thereby, be caused to either party James v. Smith (1891) 1 CH 384.

In Alawode Ajao & Others v. Salimonu Ajao Awososan Unreported Ibadan Civil Suit No. 1/90/63 per Eso, J (as he then was) the plaintiffs’ claim was for damages for trespass to land and for injunction. After the case for the plaintiff had been closed and the defendant had called eight witnesses and their learned counsel had addressed the court, the plaintiff then applied to add additional claim for declaration of title to land. The learned Judge granted the amendment basing it on the case of Tildesley v. Harper (1876) 7 CHD 403 that where the respondent to the application can be compensated in costs, the amendment may be granted, so plaintiff’s amendment was granted and then proceeded to address the court.

As to the stage of trial and amendment being exercise of discretion, the exercise of discretion is not a precedent for another exercise of discretion if accepted as a precedent there is therefore no exercise of discretion, each exercise of discretion shall turn out on the peculiar facts and circumstances of each case Odusote v. Odusote (supra).

In Chief O.N. Okafor v. Ikeanyi & 3 Ors. (1979) 3 & 4 SC 99, was a case of an amendment sought in the lower court in a case of libel and damages. The parties completed their cases after calling witnesses and addresses of learned Counsel after which the learned trial Judge adjourned for judgment. On the morning of the day for delivery of judgment, plaintiff brought an application to amend his writ and statement of claim. The learned trial Judge refused the application for amendment on the ground that he had already written his judgment and turned down the application. On appeal in the Supreme Court, the learned trial Judge was blamed and that he should have entertained the application for amendment. The Supreme Court granted the application for amendment. As stated above in Odusote v. Odusote’s case supra, let me reiterate that in exercise of discretion a previous case is not a precedent for a subsequent case as the exercise of the discretion shall be based on the peculiar facts of each case. Chief Ojah v. Chief Eyo Ogboni (1976) 4 SC 69.

The complaint of appellant in his issue 4 of issues for determination in appellant’s brief was against the exercise of judicial discretion of granting many amendments of respondent’s pleading most especially after address by appellants learned counsel. The attitude of the appellate court towards exercise of discretion by the lower court is well settled. That except upon grounds of law an appellate court will not reverse a discretionary order of a trial Judge or Court merely because it would have exercised the discretion differently. But if on other grounds the order will result to injustice being done or if the discretion was wrongly exercised or that due weight was not given to relevant or unproved matter, the order may be reversed. In the instant case after careful consideration of the complaints on the several grants of amendments and a critical examination for the grants it has not been shown that there has been a wrongful exercise of the discretion by the learned trial Judge as an appellate court. I see no legal basis, grounds or justification to interfere with the exercise of judicial discretion by the lower court in granting the amendment of pleadings, the attack by appellant against the exercise of judicial discretion by the trial court lacks merit, the issue 4 in appellant’s brief is hereby, resolved against the appellant. Guda v. Kitta (1999) 12 NWLR (Pt. 629) page 21 CA; Alsthom S.A v. Saraki (2000) 14 NWLR (Pt.687) page 415 SC.

The above issues 1, 4 and 5 being appellant’s issues for determination so far, were consideration of procedural law. Issues 2 and 3 are based on substantive law on evaluation of evidence and treatment of evidence given by a party in a previous judicial proceedings.

Appellant submitted that the learned trial Judge made use of the proceedings in suit OTB/172CV/71 of Ota Grade B Customary Court admitted as exhibit A in as if such evidence was admissible to prove the plaintiff’s/respondent’s case before him. At page 313 lines 9-12 of the record of appeal the learned trial Judge stated thus:-

“Although, the defendants denied the plaintiff’s averments EVIDENCE IN EXHIBIT A show that they are customary tenants of the plaintiff’s families and these will be referred to later.”

(Italics mine).

At page 315 lines 10-15 of the record of appeal the learned trial Judge stated as follows:-

“From the contents of exhibit ‘A’ the defendant did not know whether land had been granted by members of the family to anybody, but today, he is asserting that his family granted land to the plaintiff’s families. The defendant does not know the plaintiff as a member of Matori family but only as a member of Ikotun Family.”

After comparing the evidence tendered in exhibit ‘A’ with 1st defendant’s evidence the learned trial Judge stated as follows:-

“It is obvious that 1st DW has prevaricated in respect of Ogunsi. In exhibit A at page 7, 1st (first) defendant’s witness stated that Oyekanmi begat Ogunsi, Ogunsi begat Bankole and Aina Ota, Bankole Ota is my Father.

The evidence of 1st defendant’s witness at page 7 of exhibit ‘A’ shows that the defendants are customary tenants of the plaintiff and that they had no title to the land in dispute.”

Appellant submitted that exhibit A was not used for cross examination of 1st DW as provided in Sections 34, 208 and 209, Evidence Act. The learned trial Judge at page 320 lines 30-35 accepted the evidence of 1st DW in exhibit A as stated:-

“The fact that exhibit ‘A’ has been set aside would render abortive not the evidence of the witness, who testified in the abortive trial, where such evidence is admissible, but the judgment of the court in the abortive trial…

This is what has also occurred in respect of the evidence of the defendant and his witnesses in respect of exhibit A”

(italics mine).

Applying the cases of Ayinde v. Salawu (1989) 3 NWLR (Pt.109) page 297 at 315; Alade v. Aborisade (1960) 5 FSC 167 at 172-173; Owonyin v. Omotosho (1961) 1 All NLR 304 at 308; Ariku v. Ajiwogbo (1962) 1 All NLR 629 at 631-2 all pointed to the rule that evidence given in a previous case can never be accepted as evidence by the court trying a later case, except under Section 34(1) Evidence Act, which was not applied by the learned trial Judge. Having not complied with Section 34 Evidence Act, exhibit A was inadmissible notwithstanding its admissibility without objection by appellant. As exhibit A was inadmissible this court has power to expunge it from the record of appeal as a trial court was only allowed to admit admissible evidence, so this court should expunge exhibit A as decided in Ariku v. Ajiwogbo (supra).

At page 319 of the record lines 15-23, the learned trial Judge referred to the evidence of Isaac Bankole, who testified in exhibit ‘A’ but was not called as a witness in the trial court, the learned trial Judge stated thus:-

“1st defendant’s witness Isaac Bankole at page 7 of exhibit ‘A’ stated under cross-examination thus “We have farm on the land in dispute. We did not allot land to anybody on the land in dispute.” The evidence of 1st defendant’s witness at page 7 of exhibit ‘A’ shows that the defendants are customary tenants of the Plaintiffs and that they had no title to the land in dispute.

The defendant’s family could not have allotted land to the 3rd DW and his father.

At page 7 of exhibit ‘A’ the 1st defendant’s witness Isaac Bankole during cross examination stated, thus, “…

It should be noted that Isaac Bankole’s farm is within the area edged green on exhibit ‘G’ claimed by the

defendant.”

(Italics mine).

Appellants submitted that the learned trial Judge relied on evidence extracted from exhibit ‘A’ of the particular witness not called as a witness before him contrary to the rule of law that the evidence given previously did not become evidence in the subsequent case. The learned trial Judge was influenced by the evidence of Isaac Bankole and accepted it as evidence before him when such evidence could only be used in evidence to impeach the witness under cross examination. The learned trial Judge was wrong in relying on and making of evidence given in exhibit ‘A’ to finding of fact against appellant. Issue 3 of appellant’s brief of argument from the submissions above, be resolved in favour of appellant and allow the appeal.

Issue 3 in respondent’s brief, is similar to issue 3 in appellant’s brief of argument whether the learned trial Judge relied on and made use of evidence given in the previous proceedings.

In his submission, respondent referred to page 19 of appellant’s brief of argument, appellant conceded that the learned trial Judge clearly stated the law rightly that-

“Evidence of a witness taken in an earlier proceeding is not relevant in a later trial except for the purpose of discrediting such a witness in cross examination and for that purpose only.”

Appellant failed to advert his contention to the statement of the learned trial Judge at page 320 of the record of appeal:-

“The parties to this case, have litigated at the Customary Court (see exhibit A) and at the High Court (see exhibit D) in respect of this matter and at lines 12-14 that the defendant admitted that the land litigated upon between him and the plaintiff at the Customary Court, Ota and the High Court, Ilaro are the same.

Evidence given in a previous proceedings by a witness… does not become evidence in the present case, if the two testimonies are inconsistent, it shows that the witness is not credible. Babatunde Jemil Alade v. Lawani Aborishade (1960) 5 FCS 167” This is what has happened to the defendant in this case.

(Italics mine).

Respondent contended that at no time, the learned trial Judge accepted evidence given in exhibit A as evidence before him. All that the learned trial Judge did was to state the law that the fact that exhibit A has been set aside would render abortive not the evidence of the witness, who testified in the abortive trial where such evidence is admissible but the Judgment of the court in the abortive trial.

Appellant’s contention that the evidence of the respondent in exhibit ‘A’ was inadmissible at the stage it was tendered, rendered it inadmissible was misconceived and should not be expunged as it was validly and properly admitted in law. At pages 221 of the record of appeal from line 13 page 95 lines 14-17,97 lines 13-17 the attention of appellant was drawn to the previous inconsistent statement, which was highlighted by the learned trial Judge at page 318 lines 6-39 of the record of appeal where the appellant was impeached thereby as unreliable witness. Sections 208 or 210 was rightly applied by the learned trial Judge Issue 3 in appellant’s brief be resolved against appellant.

It is common ground that exhibit A was the record of proceedings in the suit between the parties before the Customary Court wherein 1st defendant witness testified and the proceedings admitted as exhibit ‘A’ and that the learned trial Judge referred in particular to page 7 wherein, one Issac Bankole testified at page 7 the witness did not testify in the High Court.

The Court of Appeal in Sunday Njoku & Two Ors. (for themselves and as representing Umuebule (Community in Ikwerre Etche L.G. Area) v. Nwogbo Elechi & 3 Ors. v. Jacob Dikibo & 3 Ors. (for themselves and as representing the people of Okrika in Umuebule) in Ikwere/Etchi L.G. Area) (1998) 1 NWLR (Pt. 534) page 496 at 518 held on the use of evidence in previous proceedings in a later case:-

“15. Evidence given in a previous case can never be accepted as evidence by the court trying a later case, except where Section 34 of the Evidence Act applies. However, evidence given in an earlier case by persons who also testify in a later case, may be used for cross-examination as to credit but it is of no higher value than that. In the instant case, the use to which the trial court made use of the evidence of the 1st appellant in the previous case was erroneous and gross enough to vitiate the judgment (Alade v. Aborishade (1960) SCNLR 398; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) page 248; Ariku v. Ajiwogbo (1962) SCNLR 369 referred to.)

(16) The Court of Appeal is loathe and generally shall not disturb the finding of fact of trial court unless such finding is perverse or arrived at by misapplication or misunderstanding of the law Ebba v. Ogodo (1984) 1 SCNLR 372; Oro v. Falade (1995) 5 NWLR (Pt. 396) page 385 SC”.

See further, L.B. Folarin v. Oyewole Durojaiye (1988) 1 NWLR (Pt.70) page 351 at 354; Akanbi v. Alatede (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) page 125 CA; Ojeme v. Ojeme (2000) 13 NWLR (Pt. 685) page 606 CA; Bayol v. Ahemba (1999) 10 NWLR (Pt. 623) page 381 SC.

At page 71 of the record of appeal, respondent as 1st PW, tendered the proceedings in Alhaji Bisiriyu Sule v. Michael Aina in suit OTB/172CV/71 in Otta, Grade B Customary Court, it was tendered with consent as follows:-

“COURT:- By consent, the certified true copy of the proceedings and judgment in suit No. OTB/172CV./71 is hereby, admitted in evidence as exhibit ‘A’.

It is crystal clear that exhibit ‘A’ a certified true copy of public documents was admitted by consent, without objection under Sections 109, 111 and 112 Evidence Act, without application under Sections 34(1), and 209 Evidence Act, being certified true copy of public document, it was admissible but when passed through the crucible of attaching probative value to it may be found to be a worthless document. Having been properly admitted the contention of appellant to expunge it for non-compliance with Section 34(i), 199 Evidence Act, is misconceived the probative value to be attached to it is different. At page 7 of exhibit A, one Isaac Bankole testified as 1st defence witness in the suit and it is common ground that he did not testify in the High Court. At page 313 of the record of appeal in his judgment, the learned trial Judge stated:-

“Although the defendant denied the plaintiff’s averments, evidence in exhibit ‘A’ show that they were customary tenants of the plaintiff’s families and these will be referred”

AT PAGE 319

The evidence of 1st defendant’s witness at page 7 of exhibit ‘A’ Shows that the defendant’s (Appellant in this judgment are customary tenants of the plaintiffs (respondents) they had to the land in dispute. The defendant’s family could not have allotted land to 3rd DW, or his father.

At page 7 of exhibit ‘A’ the 1st defendant’s witness Isaac Bankole.

AT PAGES 320, 322-323

This is also contrary to his evidence at page 7 of exhibit ‘A’. The defendant is therefore, not telling the truth and has no regard for oath…

As this claim is one for declaration of title, this court is satisfied that the plaintiff by preponderance of evidence has been able to prove to the satisfaction of this court, that he has a better title than the defendant for the following reasons:-

(a) The admission in exhibit ‘A’ by the defendant’s family that they are customary tenants of the Ikotun family.

(c) The fact that the defendant is not aware of any disposition or grant of any land by his family to anybody see (exhibit A.)”

(Italics mine).

From the foregoing, the learned trial Judge wrongly used exhibit A by relying on the evidence of Isaac Bankole, who did not testify before him, his reliance on exhibit A was based on misapplication of the law as to what use to which evidence given in a previous proceedings can be relied upon in a subsequent proceedings. The underlining showed beyond doubt that the learned trial Judge, in holding appellant’s family to be customary tenants relied heavily on the testimony of 1st defendant’s witness therein at page 7 of the record of appeal by Isaac Bankole, who did not testify before him pointedly to his testimony at page 7 of exhibit A. The learned trial Judge based his finding of fact that appellant’s family was customary tenant on the testimony of a party not before him established beyond doubt that the finding was based on exhibit A at page 7 and was not used to discredit under Section 199 Evidence Act nor was there compliance with Section 34(1) Evidence Act – Saka Layonu & Ors. v. The State (1967) NMLR 411 SC.

The learned trial Judge found as a fact from exhibit ‘A’ page 7 the testimony of Isaac Bankole constituted an admission against the family so proceeded to hold that appellant was customary tenant of respondent.

It is axiomatic that both the court and the parties are bound by their pleadings. I looked critically at the pleadings no where has appellant averred or admitted they were customary tenants of respondent.

Section 20 Evidence Act provided that:-

“An admission is a statement oral or documentary which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons and in the circumstances hereinafter mentioned.

Section 21(1) Evidence Act-

Statements made by a party to the proceeding, or by an agent to any such party, whom the court regards, in the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions.

(2) Statements made by parties to suits, suing or sued in a representative character, are not admissions unless they were made, while the party making them held that character.”

The value of an admission depends on the circumstances under which it was made. It is the duty of the trial court to decide the issue and to give due weight to the alleged admission and explanatory facts or circumstances, Nll Abossey Oka II v. Nll Ayika II (1946) 12 WACA 31; Joe Iga & Ors. v. Ezekiel Amakiri & Or. (1976) 11 SC 1 at 11. With respect to the learned trial Judge page 7 of exhibit A was not covered by Sections 20 and 21 Evidence Act (supra) as reflected and alluded to previously in this judgment at pages 319 and 320 of the judgment of the learned trial Judge. The finding of fact that by virtue of the testimony of the uncalled witness, Isaac Bankole constituted that appellant’s family was customary tenants was perverse, being perverse as an appellate court can interfere with the said finding of fact and disturb the finding Nwokoro v. Nwosu (1994)4 NWLR (Pt. 337) page 172; Guda v. Kitta (supra). Applying the said cases, the learned trial Judge’s finding that appellant was customary tenant of the respondent was based on wrong principle of fact and law it is therefore, set aside by me.

From the foregoing, there is much force in the contention of appellant in issue 3 of appellant’s brief of argument, the submission and argument are cogent, convincing and meritorious thereby, I resolve issue 3 in favour of appellant whilst I reject issue 3 in respondent’s brief of argument as unmeritorious. Issue 3 raised substantive law therefore, I allow the appellant’s appeal and reject respondent’s issue 3 as unmeritorious and resolved against respondent. Olisa v. Osojo (supra).

Be that as it may, I now proceed to consider issue 2 in appellant’s brief of argument, succinctly put that owing to the protracted trial and inordinate delay the learned trial Judge lost control of evaluating the evidence adduced before him properly and thereby, came to a wrong decision that respondent discharged the burden on him by establishing better title against the appellant’s by granting erroneously all the reliefs sought by respondent.

Appellant submitted that a proper appraisal of the evidence adduced before the learned trial Judge and assessment should have shown that appellant was not entitled to be found as customary tenant of the respondent, but his vision was beclouded by the long trial before the learned trial Judge at Ilaro, Ota and finally, at Sagamu High Court. The learned trial Judge did not act judicially and judiciously, in granting all the respondent’s reliefs and claims. At pages 3-3 and 322 of the record of appeal, the learned trial Judge on the review of traditional evidence held as follows:-

“Of the two traditional histories, the land in dispute given by the parties, this court therefore, prefers that given by the plaintiff which this court finds is more probable, factual, straightforward and tenable.

Both parties to this action, have denied the existence of certain facts and which this court does not believe. For instance, some of the plaintiff’s witnesses have denied the existence of idols on the land in dispute but from the evidence of the 7th DW and exhibit G, it is without any doubt that there exists some idols on the land in dispute:

PAGE 322

There is no doubt that the defendant’s family has been in long possession of the land in dispute. As asserted by him, this has been for 200 years. Evidence of long possession without more cannot confer title on them as they have not asserted any right of ownership.”

Appellant reproduced the evidence of 1st PW at pages 68 lines 23-28 and page 69 lines 16-22 as follows:-

“My family has constituted this action against the Isidana Family (appellants family). My father gave them part of the land which is in dispute. My family gave the Isidana family land in dispute as their customary tenants to farm on it. This Isidana Family pay my family customary tributes over the land in dispute.

The name of my ancestor is Olakoru Ikotun and Matori, are the children of Olakoru. Iyanda the grandson of Olakoru gave Akilodi land on behalf of Ikotun family.

Akilodi did not give this land any name. Michael Aina (appellant) calls the land in dispute Isidana. Michael Aina (appellant) farms on this land called Isidana. He also built a house there.”

(Italics mine).

Appellant submitted that the reception of the evidence of the thirteen witnesses (6 for respondent and 7 for appellant) the time of addresses and the time of delivery of judgment constituted an inordinate delay which rendered the perception of the testimonies of the witnesses vague and made the learned trial Judge not to have evaluated and assessed the evidence properly under the decision of the Supreme court in Awobiyi v. Igbalaiye Brothers (1965) 1 All NLR 163, (1965) NMLR 306; Chief Yakubu Kakarah v. Chief Okere Imonikhe (1974) 4 SC 151, thereby, the learned trial Judge failed to comply with setting up an imaginary scale as laid down in Mogaji v. Odofin (1978) 4 SC 91. Learned trial Judge failed to consider the evidence of possession of the appellant spanning over 200 years, when he held that the evidence of long possession without more, could not confer title on appellant for failure to assert any right of ownership which ownership was established by 1st DW that their ancestor settled on the land in dispute, about 200 years having hailed from Ile-Ife and carried out farming on the land in dispute. The issue was re-emphasised in appellants reply brief.

Appellant submitted that respondent did not establish concrete evidence that he had better title than appellant and was wrong of the learned trial Judge to have granted all the claims of the respondent by not attaching weight to the evidence of 1st DW the eighty-year old man the oldest person that testified in the trial. Appellant relied on the cases of Ukatta v. Ndinaeze (1997) 4 NWLR (Pt. 499) at 251, (1997) 4 SCNJ 117 at 134 and Nwawuba v. Enemuo (1988) 2 NWLR (Pt. 78) page 581 at 595, that such men in their very old age were not likely to tell falsehood, because of the inordinate delay between the hearing, commencement of evidence and time of delivery the learned Judge was not in a position to evaluate the credibility of the witnesses on most vital and contested issues, so court to allow the appeal by resolving issue 2 in favour of appellant, as respondent was not entitled to judgment for failure to discharge the burden on respondent. The contention was argued further in appellant’s reply brief.