ACHU ESQ & ORS V. ETTA & ORS (2017)

In The Court of Appeal of Nigeria

On Tuesday, the 13th day of June, 2017

CA/C/244/2014

Before Their Lordships

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria


Between

1. ACHU TAKIM ACHU ESQ
2. EGBE ETTA EGBE ESQ
3. ENGR. TAKIM ACHU
4. MR. AMBA ACHU
5. MRS COMFORT AYUK
(For Themselves and Representing Okondi Community of Bendeghe Ekeim, Etung Local Government Area) –Appellants

AND

1. MR KIEREN ETTA
2. MR MANYO ETTA
3. MR MICHAEL ORU ASSAM
4. MR NDIFON TAKON
5. MR AKAM ATIM
(For Themselves and Representing Okondi Community of Etomi Etung Local Government Area)
6. MR. EDIM NDOMA
7. MR. ENU OTUOKWA
8. MR TIKU AYUK
9. MR ALABI ACHU –Respondents

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JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is in respect of an appeal against the judgment of the High Court of Cross River State, delivered on the 31st March, 2014 by ENEJI, J.

The parties were members of the larger Okondi Community of Bendeghe Ekiem and Etomi Villages in Etung Local Government of Cross River State. They had a dispute over the management of the Okondi farmland ancestrally belonging to the entire Okondi Community upon which the Appellants took out a writ of summons against the Respondents and sought the reliefs contained in their amended statement of claim filed on the 7th February, 2012 and contained on pages 79-82 of the record of appeal as follows:
1. An order of declaration that the Claimants being members of the Management Committee appointed by Okondi Community of Bendeghe Ekiem are entitled to manage, control and supervise the six blocks of Okondi form for Bendeghe Ekiem.
2. An order requesting the Defendants to render account of the proceeds of the two farms for the farming season of 2010.
3. An order restraining the Defendants, their agents or assigns 
from trespassing into the six blocks of Okondi cocoa farm belonging to Bendeghe Ekiem Community.

On being served, the Respondents filed pleadings and joined issues with the Appellants. At trial the Appellants as Claimants called 4 witnesses while a lone witness testified for the Respondents. The learned trial Judge was unimpressed with the case presented by the Appellants and dismissed their claim while giving some orders in favour of the Respondents.
Dissatisfied with this, the Appellants invoked the appellate jurisdiction of this Court via a notice of appeal filed on the 3rd April, 2014 containing five grounds.
At the hearing of the appeal, Mr. Agbor the learned counsel for the Appellants adopted the Appellants’ brief filed on the 6th August, 2014 as well as the Appellants’ reply brief filed on the 16th March, 2014 as the arguments of the Appellants in furtherance of their appeal.
For the Respondents, Mr. Mgbe their learned counsel adopted the Respondents’ brief filed on the 8th October, 2014 but deemed properly filed and served on the 16th March, 2017 as the arguments of the Respondents in contesting this appeal.
The Appellants distilled the following 5 issues for determination, one from each of the grounds of appeal, which were adopted by the Respondents:
1. Whether the learned trial Judge was competent in law to order the setting up of a fresh joint management committee for the two units of Okondi communities of Bendeghe and Etomi.
2. Whether the trial Judge was right in holding as he did that there was no evidence of the partitioning of the farm between Bendeghe Ekiem unit and Etomi units of Okondi community.
3. Whether the learned trial Judge was right in reaching a conclusion that there was both a joint ownership and joint management of the farms between Etomi unit and Bendeghe unit of Okondi community.
4. Whether the trial Judge was not in grave error to have concluded as he did that there was no evidence of misappropriation of funds by the joint management committee.
5. Whether the learned trial Judge was right in interpreting exhibit 2 as estoppel that binds the Appellants.

Since the two sides are ad idem on the issues, I shall proceed seriatim beginning with the first issue.

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For the Appellants, Mr. Agbor submitted that the order made by the learned trial Judge for the two parties to constitute a fresh Joint Management Committee was not part of the reliefs sought by either side and was suo motu made by the trial Court without the input of the parties.
He referred to ADETOUN OLADEJI (NIG) LTD vs N.B. PLC (2007) 15 WRN 1.
The response of Mr. Mgbe to this was that a Court has powers to make consequential orders not expressly prayed for but flowing from the substantive orders made by the Court and that the order complained against flowed from the claims and reliefs sought by the parties. He referred to EFCC vs ODIGIE (2013) ALL FWLR (Pt.692) 1797 at 1803.
In his reply argument, Mr. Agbor submitted that the order in question did not emanate directly and naturally from the judgment of the trial Court and would not in the circumstances qualify as consequential. He referred to ANYAORAH vs ANYAORAH (2001A) FWLR (PT.73) 178 and JOHN ANDY SONS & CO. LTD VS NATIONAL CEREALS RESEARCH INSTITUTE (1997) 3 NWLR (PT 491) 1.
It is important to highlight some relevant portions of the judgment of the trial Court relating to the order made in respect of the said Joint Management Committee as follows:
“My take from the issue put forward by the Claimants in this action, is that they want to put the blame for the failure of the Joint Management Committee (for which they were active members), that authorized the spending of funds from Okondi farmlands, solely on the Defendants.
It will be uncautionable to allow the Claimants, after taking benefits in participating actively in the Joint Management Committee of Okondi farm estate, to turn round and sacrifice on the altar of greed, the common heritage, wealth and affilia relationship existing between Etomi and Bendeghe Ekiem families of Okondi, due to the selfish interest of just a few Joint Management Committee members. There is nothing wrong at all, with the setting up a Joint Management Committee, comprising of members of Etomi and Bendeghe Ekiem, to lease, rent or allocate Okondi farm/farmland/estate as well as make policies for the control and proper management of the said estate, and with the power to apply the funds realized therefrom, for the mutual benefits of the entire Okondi Community.
The opinion expressed above by this Court, is in line with the view expressed by the 1st

Claimant’s father at Paragraph 5 of exhibit 7, before this Court. It is also in line with the spirit and mind of the people of Onkondi Community comprising four (4) villages of Etomi, Bendeghe Ekiem, Adijinkpor and Akparabong and so be it.
In order to put to rest the controversy that has bedeviled the present Joint Management Committee, I hereby recommend that it be dissolved within one month from the date of this judgment. A fresh Joint Management Committee should be set up, comprising Etomi and Bendeghe Ekiem families of Okondi farm/farmland/estate within three months from the date of this judgment. (underlining mine)

The operative part thereof were underlined by me to show that the learned trial Judge in his wisdom only made a recommendation to the parties. It is true as contended by the Appellant that the recommendation would appear unsolicited as it was not part of the reliefs of the Appellants before the Court while the Respondents had no counter-claim and were only seeking a dismissal of the action.
The position of the law is clear that where a person has not specifically asked for a relief from trial Court, a trial Court has power

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to grant such a relief only as a consequential relief. See GARBA vs UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT 18) 550.
The latitude in this regard is not infinite, in actual fact it is circumscribed. According to MUSDAPHER, JSC: A consequential order must be one made giving effect to the judgment which it follows. It is not an order made subsequent to a judgment, which details from the judgment or contains extraneous matters. It is settled law that Court can order an injunction even where it is not specifically claimed but appears incidentally necessary to protect established rights. See AMAECHI VS INEC EPR VOL 4 90 at 205.
I.T. MUHAMMAD, JSC restated the position of the law thus:
“In Awoniyi v. Reg Trustees of AMORC (2000) 10 NWLR (Pt 676) 522, this Court re-stated the purpose of a consequential order.
“The purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the
 parties that such relief would be subject-matter of a formal executor judgment or order against either side to the dispute. A consequential order may also not be properly made to give to a party an entitlement to a relief he has not established in his favour.” See NYAKO VS ADAMAWA HOUSE OF ASSEMBLY & ORS (2016) LPELR-41822(SC) at 55-56.
It seems to me however that the Appellants are only crying wolf where there is none. What was described as an order was a suggestion or recommendation to the parties. The words used were neither compelling nor coercive. This is further confirmed by the fact that no such order was reflected in the final orders made at the end of the judgment. It was at recommendation necessitated most likely from the desire of the learned trial Judge to see the enthronement of peace among the Okondis.
There being no order made by the learned trial Judge I must therefore resolve this issue in favour of the Respondents and against the Appellants.
Issues 2 and 3 were argued together by the two sides. They are:
Whether the trial Judge was right in holding as he did that there was no evidence of the partitioning of the farm between Bendeghe Ekiem unit and Etomi units of Okondi community.
And Whether the learned trial Judge was right in reaching a conclusion that there was both a joint ownership and joint management of the farms between Etomi unit and Bendeghe unit of Oknodi community.

Arguing these issues, Mr. Agbor referred to portions of the pleadings of both parties and submitted that contrary to the findings of the learned trial Judge, the Appellants adequately pleaded and led evidence in support of their assertion of partition and separate management of Okondi farmland.
The learned counsel faulted the reliance placed by the learned trial Judge on exhibits 2 and 7 without adverting to exhibit 10 which totally discredited exhibit 3, the survey plan. He argued that the evidence of DW2 supported the assertion of the Appellants that proceeds of the said farmland were historically shared by just Bendeghe Ekiem and Etomi families indicating thereby that the remaining families were tenants as confirmed by exhibit 9. He urged the Court to disregard portions of the testimony of the Respondents’ sole witness and that of CW1 on names of earlier chairmen of the

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Central Committee as unpleaded thereby going to no issue. He referred to NEPA VS ABA (2001) FWLR (PT 38) 1240.
Mr. Mgbe countered that in exhibit 7, the Appellants’ father/uncle confirmed non-partitioning and joint ownership and thereby estopped the Appellants from taking a contrary position from the declaration in exhibit 2, a valid and subsisting judgment. He referred to Section 169 of the Evidence Act and ALIMS vs UBA (2006) 4 FWLR (PT.341) 6902 and NWORAH VS NWABUNZE (2012) ALL FWLR (PT 613) 1827.
He submitted that while the Appellants pleaded partition and separate management of the said farmland, the Respondents denied it and joined issues with them but while the Respondents led evidence in support of their pleadings, the Appellants failed to do so. He denied any admission on the part of the Respondents and referred to AYANRU VS MANDILAS LTD (2008) 1 FWLR (PT 407) 443.
Learned counsel insisted that the oral evidence adduced by the Respondents that the said Okondi farmland had always been jointly managed was supported by documents thereby lending credence to the assertions. He referred to JOLASUN VS BAMGBOYE (2011) ALL FWLR (PT 595) 209 and
OLIEH vs FRN (2005) ALL FWLR (PT 281) 1754.
He further submitted that the finding of the trial Court that four units of 16 families jointly owned the said Okondi farmland was supported by the uncontroverted pleadings and evidence adduced by the Respondents thereby making it illogical for just the Appellants alone to be entitled to half of the said farmland and denied the implications attributed to exhibit 9 by the Appellants.
In his reply brief, Mr. Agbor reiterated his earlier argument that exhibit 2 did not make any pronouncement on joint management of the said Okondi farmland.
Let me start by pointing out that once parties amend their pleadings, the previous pleadings are of no moment and the issues in contention would be as defined in the amended pleadings. All references to earlier pleadings by both sides are inappropriate and shall be accordingly discountenanced.
See KATTO VS CBN (1999) 6 NWLR (PT.607) 390.
The extant pleadings of the parties therefore are the Amended Statement of Claim and the amended Defendants’ Joint Statement of Defence on pages 79-82 and 58-62 respectively of the record of appeal.
The Appellants pleaded the partition of the said Okondi farmland in paragraph 3 as follows:
“The Claimants are principal members of Okondi Community of Bendeghe Ekiem. The said Okondi Community cuts across Bendeghe and Etomi towns in Etung Local Government Area and owning a large parcel of cocoa farm made up of twelve blocks of several hectares. The twelve blocks are shared into two equal blocks of Six each to Bendeghe Ekiem Community and Six to Etomi Community.”
In paragraph 3 of their pleadings, the Respondent averred as follows:
The Defendants deny paragraph 3 of the Amended Statement of Claim and in answer state that:
(a) There are no recognized principal members of Okondi Community in Bendeghe.
(b) There is only one Okondi Community Union.
(c) Okondi Community cuts across Etomi, Bendeghe Ekiem, Akparabong and Adjinkpor Communities.
(d) The twelve (12) blocks constituting Okondi Cocoa farm are not and have never been shared into two (2) equal blocks of six (6) each to Bendghe Ekiem and Etomi.

It is palpably evident that the Respondents did not in any manner admit the averments of the Appellants on this issue thereby invalidating

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the contention of the Appellants’ counsel in this regard. There was not only a denial but it was followed by explicitly stated contrary facts.
The findings of the trial Court are on pages 145-146 of the record of appeal as follows:
Furthermore, I find and hold that the Claimants’ position and insistence that Okondi Form has been separately managed by Etomi and Bedeghe Ekiem family cannot be sustained, reason being that there is unchallenged evidence on record that Okondi Community is comprised of sixteen (16) members cutting across Bendeghe Ekiem, Etomi, Adjinkpor and Akarabong.
Now Bendeghe Ekiem alone wants to control and manage exclusively 6 blocks out of the 12 blocks of farmland in Okondi farm. Should this Court endorse the above position, it will invariably mean that the Claimants will be managing and controlling six (6) blocks of Okondi Farmland, while Etomi, Adjinkpor and Akarabong villages will be left to share the remaining six (6) blocks of Okondi farmland. What is the basis of this sharing formular.

In coming to this conclusion, the learned trial Judge substantially relied on exhibits 7 and 2. Exhibit 7 is on pages 201-202 of the record of appeal. The opening sentence goes thus:
“I am writing for and on behalf of Okondi Family Unit of Bendeghe Ekiem and I do so on their instructions.”
I will highlight a few paragraphs of the letter written to the Paramount Ruler for Ikom Local Government Area on 13th May, 1994 as follows:
(1) That the whole land of Okondi is the property of all Okondi people wherever they live.
(2) That over thirty (30) years ego, in the general meeting of Okondi people, comprising all the units, we resolved that no individual person or unit of Okondi of groups of Okondi people should cede (i.e. surrender) any part of Okondi land to any person or groups of persons.
(3) That we the Okondi people from all units should open a Community cocoa farm near the site of our old settlement in order to protect and preserve our shrines and relics at the site of the ruin of the old Okondi settlement.
(4) That this community cocoa farm had been developed and is now the bone of contention between the parties named above.
(5) That the interest from the land of Okondi does not belong to any one unit but it is for all the units living in the
 villages surrounding Okondi land.
(7) That all indigenes of Etomi, Bendeghe Ekiem, Akparabong and Adijinkpar who are not members of Okondi and who farming in Okondi land are doing so on the customary Licence given to them, but any person who disrespect or abuses this Licence or tries to be the Landlord will be shown the way out, we don’t collect any rent from them.
(9) The headquarters of our Okondi people is at Etomi where all the Units meet and we intend to build a community Hall there.
(10) We have had enough of cases and we hereby pray that peace should reign everywhere so that the Okondi people concentrate their energy in building their Hall.

At trial, witnesses for the Appellants confirmed that this letter was signed by their father/uncle and that the letter was written on their behalf. The said letter contains far reaching declarations totally at variance with the position now being canvassed by the Appellants.
Mr. Mgbefor the Respondents made recourse to Section 169 of the Evidence Act, 2011. He is on solid ground here. The said Section 169 provides thus:
“When one person has either by virtue of an existing Court

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judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
Exhibit 7 is essentially a declaration against interest and a party who has admitted the existence of a fact is estopped from denying the existence of that fact. See EZEONWU VS ONYEOCHI (1996) 6 NWLR (PT 438) 499.
Exhibit 2 is on pages 160-199 of the record of appeal. It is the judgment and record of proceedings of the District Customary Court of Northern Etung, Cross River State. I have perused the entire exhibit and the proceedings confirm the unity and commonality of the Ekondis spread in the four units of Etomi, Bendeghe Ekiem, Akparabong and Adingikpor with that Court refusing to accede to the separatist claim of the Plaintiffs therein who are the Appellants in this appeal.
Mr. Agbor submitted that exhibit 9 supports the position of the Appellants of historical separate
management of the said farmland. Exhibit 9 is on pages 203-206 of the record of appeal. A perusal thereof does not provide a response to exhibit 7 or even exhibit 2, neither does it connote the far reaching implications in support of the Appellants’ position, attributed to it by the learned counsel.
Civil cases are decided on preponderance of evidence whereby the evidence adduced by each side is placed on an imaginary scale which tilts in favour of the side with the more credible evidence. See OKHUAROBO vs AIGBE (2002) 9 NSCQR 623.
According to ADEKEYE, JSC:
Where a trial Court unquestionably evaluates the evidence, and dispassionately appraises the facts, it is not the business of an appellate Court to substitute its own view for those of the trial Court. It will only interfere in exceptional circumstance where such finding is perverse, not supported by evidence or had occasioned a miscarriage of justice. Woluchem v. Gudi (1981) 5 SC 291, Maja v. Stocco (1968) 1 ALL NLR pg.141, Akinloye v. Eyiyola (1968) NMLR 92, Obisanya v. Nwoko (1974) 6 SC 69, Lawal v. Dawodu (1972) 1 ALL NLR (Pt.2) pg. 270,Mogaji v. Odofin (1978) 4 SC 91.
A finding of Court will be perverse where:-
a) It is speculative and not based on any evidence or
b) The Court took into account matters which it ought not to have taken into account or
c) The Court shut its eyes to the obvious
Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) pg.360, Adeosun v. Jibesin (2001) 18 NWLR (Pt.724) pg. 290. See RABIU HAMZA VS PETER KURE (2010) at 5 NCC 486 at 507-508.

There is no basis to interfere with the findings of the learned trial Judge in this instance as they accord with the state of evidence before him. I therefore resolve the two issues in favour of the Respondents and against the Appellants.
The next issue is whether the trial Judge was not in grave error to have concluded as he did that there was no evidence of misappropriation of funds by the joint management committee.
On this issue, Mr. Agbor submitted that while the respondents admitted receiving certain sums of money they failed to render account and accordingly justified the necessity for the Appellants to protect their joint family property. He referred to ADEYORI vs ADENIRAN (2001) FWLR (PT 76) 689.</strong

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Mr. Mgbe responded that the issue raised bothered on fraud which as a criminal allegation must be established beyond reasonable doubt. He referred to OYEWO vs KOMOLAFE (2011) ALL FWLR (pt 578) 908. He argued that the Appellants failed to lead any evidence of misappropriation and equally failed to controvert the account rendered by the Respondents in their pleadings. He referred to UNIUYO VS AKPAN (2014) ALL FWLR (PT 736) 1156 and UKPANA vs AYAYA (2011) ALL FWLR (PT 598) 1826.
He submitted further that the 4th Appellant was privy to the account rendered by the Respondents and that the order made by the trial Court dissolving the Executive Committee formed by the Appellants was rightly made.
This issue was not touched in the Reply brief.
In paragraph 10 of the amended statement of claim, the Appellants averred as follows:
The Committee rented out the Okondi farms and realized the sum of N1,400,000.00 (One Million Four Hundred Thousand Naira). The said amount was never accounted for by the Defendants. Okondi Bank Account is 5922030001359 First Bank Plc, Ikom.
In paragraphs 6 (f) and (g) the Respondents stated as follows:
(f) The committee did not realized(sic) rents from her land up to N1,400,000 (One Million, Four Hundred
Thousand Naira) in 2010 but N1,200,000 (One Million, Two Hundred Thousand Naira).
(g) The committee agreed that the money be used for the building of Okondi Community Town Hall, which has been done. Equally, the committee agreed that cocoa nursery be raised and or bought to improve fallow areas where older cocoa stems have withered away. This has also been done and the balance deposited in the Okondi Community Bank Account in First Bank of Nigeria Plc.

The Appellants failed to file any reply to these new facts disclosed by the Respondents in answer to their averments. Once the Respondents sought to justify their action by pleading a set of facts different from that pleaded by the Appellants, then the Appellants had a duty to set up such set of facts as would show the lie in the Respondents averments, otherwise the Appellants would be deemed to have admitted the new set of facts put forward by the Respondent. See UGHUTEVBE VS SHONOWO (2004) 18 NSCQR 741.
That being the case, the Appellants have no basis to complain against the findings of the learned trial Judge in this regard and I resolve this issue as well in favour of the Respondents against the Appellants.
The remaining issue is whether the learned trial Judge was right in interpreting exhibit 2 as estoppel that binds the Appellant. 
On this issue, Mr. Agbor argued that exhibit 2 cannot constitute res judicata in the present circumstances as the conditions precedent for the application thereof, were not met. He referred to ACHIAKPA vs NDUKA (2001) FWLR (PT 71) 1804.
He contended that the District Customary Court was devoid of jurisdiction to adjudicate on chieftaincy matters and submitted that the judgment thereof was delivered without jurisdiction.
Mr. Mgbe responded that that the legal authority of ACHIAKPA VS NDUKA was rightly applied and countered that this Court was not the right forum to raise the issue of jurisdiction of the said District Customary Court for the time when the decision of that Court was not appealed against.
In his reply brief, Mr. Agbor reiterated his earlier arguments and in addition submitted that failure to

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challenge the jurisdiction of the District Customary Court at trial cannot bar its being raised now on appeal.
The issue argued herein was distilled from Ground 5 of the notice of Appeal. The said Ground five is reproduced as follows:
GROUND FIVE
The learned trial Judge misdirected himself in law in holding that Exhibit 2 being a judgment of the District Court against the father of the Appellants binds the Appellants as privies.
PARTICULARS OF ERROR
1. Exhibit 2 did not decide on the same issues as canvassed by the Appellants.
2. Exhibit 2 was in the main as to who between the Appellants’ late father and one Bisong Achu was better qualified to be the Chief or Chairman of BendegheEkiem unit of Okondi family.
3. Exhibit 2 was not about joint management of the Okondi farm between Bendeghe and Etomi units.
4. The context between Appellants’ late father and the said Bisong Achu is not a replay in the present suit.

It is evident that no issue of jurisdiction of the District Customary Court or the competence of that Court was contained in this ground of appeal. The said issue was not canvassed at the trial Court and as such the arguments of counsel in regard thereto have no bearing with the appeal as properly presented before this Court. While a party may canvass fresh issues on appeal, such must be with the leave of Court and not at the whims of parties. The said arguments shall be appropriately discountenanced.
On pages 149-150 of the record of appeal, the learned trial Judge after reviewing exhibit 2, held as follows:
“Consequent upon the above stated position of the law, I hereby find and hold as submitted by the Defendants’ counsel, that the Claimants’ present claim is otiose, unfounded and incompetent, as the Claimants are bound by the previous judgment (Exhibit 2), which refused their forefathers from partitioning Okondi estate, which up till now, is jointly managed by the Okondi families of Etomi and Bendeghe Ekiem.”
With due respect to the learned trial Judge, a perusal of the said exhibit 2 does not validate the rather generous expansion given the issues in contention therein. Exhibit 2 was not about partitioning of Okondi estate but was about the headship of one of the units with implications for the joint management thereof. There was no specific relief in that case for partitioning of the Estate. The issues are certainly not on all fours with the present case.
According to FABIYI, JSC:
The appellants attempted to rely on Exhibit E as constituting res judicata which has been defined as a matter adjudged; a thing judicially acted upon or decided: a thing or matter settled by judgment. Rule that a final judgment rendered by a Court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and so to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. See: Matchett v. Rose 36 111 App 3d 638, 344, NE 2d 770, 779. A matter once judicially decided is finally decided. To be applicable, requires identity in thing sued for: identity of cause of action, persons and parties to the action’ (Blacks Law Dictionary Sixth Edition 1305-6). See AMINU VS HASSAN(2014) 57 NSCQR 44 at 70 and ACHIAKPA VS NDUKA (supra).
The parties herein are not identical with the parties in exhibit 2 neither are the issues strictosensu. I therefore resolve this issue in favour of the Appellant.

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The success of the Appellant on the fifth issue is insufficient to save this appeal as it is not every error of a trial Court that will result in the appeal being allowed once no miscarriage of justice has been occasioned. See FATUNBI VS OLANLOYE (2004) 18 NSCQR 810.
In the final circumstances therefore, this appeal is devoid of merit and it is accordingly dismissed.
Parties shall bear their respective costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: The draft of the judgment just delivered by my learned brother Hon. Justice J. O. K. OYEWOLE JCA has been served upon me. Having read same vis-a-avis the briefs of argument of the learned counsel and the record of appeal, I too hereby dismiss the appeal for lacking in merits.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother, J.O.K. Oyewole, JCA. I agree with his reasoning and conclusion that this appeal is lacking in merit and should be dismissed.
My learned brother has resolved all the issues raised in this appeal. His reasoning represents my view and I have nothing more to add.
therefore dismiss the appeal and affirm the judgment of the Lower Court delivered on 31st March, 2014:
I abide by the order that parties shall bear their respective costs as made in the lead judgment.

Appearances

Mr. O. N. Agbor Esq., with him Mr. S. O. IJoma Esq. –For Appellants

AND

Mr. D. Mgbe Esq. –For Respondents

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