- Flynote
- CL|Amendment to Pleadings|Admissibility
CHIMA UME & ORS ....... Appellants
V.
CHRISTIAN UCHECHUKWU IBE .......... Respondent
IN THE COURT OF APPEAL OF NIGERIA
ON MONDAY, THE 22ND DAY OF FEBRUARY, 2016
CA/OW/57/2011
LN-e-LR/2016/61 (CA)
MAIN JUDGMENT
PETER OLABISI IGE, J.C.A.(Delivering the Leading Judgment):
This appeal relates to the judgment of ABIA STATE HIGH COURT, UMUNNEOCHI JUDICIAL DIVISION which sat at NKWOAGU ISUOCHI contained in the judgment of HONOURABLE JUSTICE C.O.C. IZIMA delivered on the 17th day of January, 2011.
The Respondent as claimant had by his writ of summons issued out of the said Court on 27th day of April, 2000 claimed against the Appellants as Defendants jointly and severally for the following reliefs:-
The Plaintiff claims against the defendants jointly and severally as follows:
1. A declaration that the plaintiff is entitled to the statory right of occupancy of that piece or parcel of land called ýAGUUOHA LANDý situate along Emmanuel Ibe Road in Umukpuaro Mbala Isuochi in Umunneochi Local Government Area of Abia State of Nigeria within the jurisdiction of this Honourable Court.
2. A declaration of Court that the Abosi trees and not Ukpaku tree forms the boundary on the left hand side of the said land between the plaintiff and the 1st defendants land.
3. Perpetual injunction restrain (sic) the defendants, their servants agents privies and successors in-title from further trespassing into the plaintiff??s said portion or parcel of land.
4. Special damages of N431,300 (four hundred and thirty one thousand three hundred naira) for trespass into the plaintiffs said land in that in or about the 23rd day of April 2000 the defendants entered into the said plaintiff??s land and maliciously damaged the plaintiffs fence covering an area of 218 feet and further destroyed and carried away some building materials on the said land.
PARTICULARS OF SPECIAL DAMAGES
(a) 130 bags of cement at N650 each = 84,500
(b) 8 trips of sharp sand at N1,900 each = 15,200
(c) Water supply N5,000
(d) Old blocks at the site 600 pieces at N40 each = N24,000
(e) Planks (damaged by Defendants =N12,000
(f) 5/.8 Red (16mm) 150 lengths N90,000
(g) 60 Planks N12,000
(h) 40 length of Red N12,800
(i) General labour N46,000
(j) Transportation N20,000
Total N431,300.00
5. One million naira being General damages for trespass into the said plaintiffs land
Date this 27th day of April, 2000.
The Claimant now Respondent filed statement of claim in the action on 19-1-2002. The Respondent however relied for his case against the Appellants, the further Amended Statement of claim dated 24th day of January, 2008 wherein on he claimed as follows:-
"1. Against the 1st, 5th and 6th Defendants: A declaration of the Honourable Court that the Plaintiff is entitled to the statutory Right of Occupancy to that piece or parcel of land situate at Aguohoro along Emmanual Ibe Road, Umukaro, Mbala Isuochi, Umunneochi, Local Government Area of Abia State.
2. Against the Defendants jointly and severally the sum of N1,000,000.00 (One Million. Naira) being general damages for trespass into the said land.
3. Against all the Defendants a perpetual injunction restraining the Defendants, by themselves, their servants, agents, privies or workmen from further entry into or any other way whatsoever from interfering with the Plaintiffs possession, enjoyment or user of the said land"
The Appellants filed joint statement of Defence which was Amended on 27th day of February, 2006 dated same date.
The matter proceeded to hearing and at the end of trial the Learned trial Judge in a considered judgment delivered on aforesaid 17th day of January 2011 found as follows:
"In this case the failure of the 2nd, 3rd, 4thýand 5th defendants in adducing evidence regarding their alleged trespass into the plaintiffs land renders them and the other defendants liable to the general damages the plaintiff is seeking See O. Ararambi & Anor v. Advance Beverages Industries Ltd (supra). In the instant case therefore, the 2nd, 3rd and 4th defendants at the conclusion of this trial did not adduce any evidence in denial of the plaintiffs evidence that they trespassed into his land and demolished his fence wall therein. It is trite that evidence adduce in support of undenied averments in pleadings must be believed See Alhaji Muhammadu Magari Dingyadi & Anor v. Aliyu Magatakarda Wamako & 3 Ors (2008) 17 NWLR (Pt. 1116) 395 at 407.
Pleadings are not human beings. They do not have mouth and they do not speak. Findings of fact cannot be made from paragraphs of the statement of claim or defence filed by a party as pleadings of which statements of claim or defence are part cannot take the place of evidence in a contested Case in Court. This is because Courts of law can only decide issues in controversy between parties on the basis of the evidence before them.
In this case, the failure or neglect of the 2nd, 3rd and 4th defendants to adduce evidence of their roles in this case has rendered them vulnerable to the liability in trespass to the plaintiffs claim. See: Nika Fishing Co. Ltd. V. Lavina Corporation (2008) 16 NWLR (Pt. 1114) 509 at 524; Akinfosile v. Ijose (1960) SCNLR 447; Akanmu v. Adigun (1993) 7 NWLR (Pt. 304) 218.
It is trite that general damages are such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate result, or such as necessarily result from the injury or such as did in fact result from the wrong, directly and approximately, and without reference to the special character, condition, or circumstances of the Plaintiff. See: U.T.B (Nig.) Ltd v. Ajagbule (supra). In awarding general damages I am guided by the actions of the defendants against the plaintiff since 1986 which led to the demolition of the plaintiffs fence on the land in dispute.
In the final analysis, it is my respectful view that the action of the plaintiff succeeds. Accordingly, I hereby make the following orders in favour of the plaintiff.
1. Against the 1st and 6th defendants as well as the survivor(s) of the estate of the 5th defendant on record a Declaration that the plaintiff is entitled to the Statutory Right of Occupancy to that piece or parcel of Land situate at AGUOHORO along Emmanuel Ibe Road. Umukpara, Mbala, Isuochi, Umunneachi Local Government Area of Abia State of Nigeria, within the jurisdiction of this Court;
2. Against all the defendants on record (including the survivor(s) of the estate of the 5th defendant) jointly and severally the sum of N400,000.00 (Four Hundred Thousand Naira) being general damages for trespass into the plaintiffs aforesaid land; and
3. Against all the defendants, (including the survivor(s) of the estate of the 5th defendant) a perpetual injunction restraining the defendants, by themselves their servants, agents, privies or workmen from further every into or in any other way whatsoever from interfering with the plaintiffs possession, enjoyment or user of the aforesaid land.
Costs follow event. The Plaintiff is entitled to cost against all the defendants on record assessed and fixed at N20,000.00 (twenty thousand naira) which shall include his out of pocket expenses. The awards are also having regard to the present value and purchasing power of the naira. This is the judgment of this Court in this Case.
The above findings of the lower Court engendered this appeal, Notice of which was given on the 3rd of February 2011. It is dated 2nd day of February 2011. The said Notice of Appeal contains eleven grounds of appeal which without their particulars are as follows-
GROUND ONE
The learned trial Judge erred in law in his conclusion in his Judgment wherein he said:
It is my respectful view that the signature of the 6th Defendant as endorsed on the Land Agreement is the same as the one endorsed on the Sketch Plan. It is my further holding that the 6th Defendantýs denial of lack of knowledge of the Sketch Plan or of not signing the same is an afterthought. He was being smart by half.
GROUND TWO
The learned trial Judge erred in law when he admitted the Land Agreement as Exhibit B in this Case.
GROUND THREE
The learned trial Judge erred in law when he rejected the case of the 1st Defendant in this case by his reasoning in his judgment wherein he said that:
From the year 2000 when this case was instituted in this high Court to the date of judgment would approximately give one 10 years. On the whole, 24 years have elapsed since when the 1st Defendant has been dissipating energy, claiming that he bought land all these years (since 1986) and yet he did not file any counter claim in this suit nor has it occurred to him all these years to file a civil action against the Plaintiff.
GROUND FOUR
The learned trial Judge erred in law when he held in his judgment that:
ýIt is amazing that for all these 24 years even before the local arbitrations in this Court, the 1st Defendant never pleaded nor adduced evidence as to how much was the value or consideration he paid the 5th Defendant over the alleged piece of land he acquired from him nor did he the 1st Defendant ever tendered any purchase receipt or document of any kind evidencing land transaction of any kind between him and the 5th defendant. All he kept saying was I bought land from the 5th Defendant Ekeleme Ikwuagwu. He did not plead not adduce evidence whether the acquisition was according to customary law of Mbala Isuochi people, in the absence of any documentary evidence.
GROUND SIX
The learned trial Judge erred in law when he reached the conclusion in his judgment wherein he said:
I agree with the submissions of the learned counsel to the Plaintiff and the evidence of the Plaintiff and his witnesses that the defendants, particularly the 1st, 5th and 6th Defendant, entered into a conspiracy to snatch the land now in dispute from the Plaintiff hence the 6th Defendant has hitherto regretted selling his land to the Plaintiff at an under value in 1978. The evidence of the PW1 in this regard was not controverted. With due respect, I reject the evidence of the DW1.
GROUND SEVEN
The learned trial Judge erred in law when he held that the defendants failed to challenge the Plaintiff on the contents and features of Exhibit
GROUND EIGHT
The learned trial Judge erred in law when he accepted the evidence of Native Arbitration over the land in dispute and thereby came to the conclusion that the land in dispute belongs the Claimant.
GROUND NINE
The learned trial Judge erred in law when he relied on his findings at the locus in quo in coming to the conclusion that the land in dispute belongs to the claimant.
GROUND TEN
The learned trial Judge erred in law when he awarded general damages of N400,000.00 (Four Hundred Thousand Naira) against the defendants.
GROUND ELEVEN
The learned trial Judge erred in law when he found the deceased 5th Defendant liable to the claims of the claimant.
The Appellants Brief of Argument dated 1st March, 2013 was filed on the same date while the Respondents Amended Brief of Argument dated 29TH August 2013 was filed on 9th September, 2013. It was deemed properly filed on 18th September 2013.
This appeal was heard on 19th day of October, 2015 when the Leaned Counsel to the parties adopted their Briefs of Argument.
I was unable to deliver judgment in this matter before now due to National Assignment for the hearing and determination of interlocutory and final appeals to this Court from Election Petition Tribunals up to 31st December 2015 after which the Court went on 2 weeks recess from 2nd January, 2016 to 18th January, 2016.
The Appellants Learned Senior Counsel Dr. I.N. Ijiomah SAN distilled seven issues for consideration of the appeal herein viz:
1. Whether the Learned Trial Judge was Right in relying on exhibit B (Document Titled Land Agreement admitted in evidence as a receipt by the trial Court in coming to the conclusion that the land in dispute belongs to the claimant (Grounds One & Two)
2. Whether the trial Judge was right in rejecting the 1st Defendants case on the ground that the 1st Defendant did not file a counter claim and did not tender any document evidencing his purchase of the land in dispute (Grounds Three and Four.)
3. Whether the trial Court was Right when he held that the 1st , 5th & 6th Defendants entered into conspiracy to snatch the land in dispute from the Claimant (Ground Six)
4. Whether the trial Judge was right when he relied on Exhibit A (Dispute Survey Plan) in coming to the conclusion that the land in dispute belongs to the claimant, in particular, his conclusion that the Defendants failed to challenge the contents and feature in exhibit A (Ground Seven)
5. Whether the trial Judge was right when he accepted the Claimants version about the decision of the National Arbitration over the land in dispute in coming to the conclusion that the land in dispute belongs to the claimant (Ground Eight)
6. Whether the trial Judge was right in relying on his impressions at the locus in quo in coming to the conclusion that the land in dispute belongs to the claimant (Ground 9)
7. Was the trial Judge right in relying on his impressions at the locus in quo in coming to the conclusion that the land in dispute belongs to the Claimant (Ground 9).
The Learned Silk to the respondent formulated five (5) issues for determination of the appeal namely:
1. Whether the Learned trial Judge was not right in ascribing probative value to Exhibit A (Grounds 1 and 2).
2. Whether the rejection of the case of the appellants and the acceptance of the case of the respondent was not proper in land (Grounds 3, 4 and 6).
3. Whether on the pleading and evidence of the parties and in particular Exhibit A and D the findings of the learned trial judge on the features and boundaries of the land in dispute (including the findings on visit to locus in quo) and conclusion reached based on these findings are not justified (Grounds 7 & 9)
4. Whether the conclusion of the learned trial judge on National arbitration was not proper having regard to the pleadings and evidence before the Court (Ground 8)
5. Whether the decision of the Learned Trial Judge on the liability of the appellants for trespass and the award of 400,000.00 damages therefore are not proper in law (Ground 10).
I am of the view that this appeal can be determined on the issues formulated by the Appellants.
ISSUE 1
Whether the Trial Judge was Right in relying on exhibit B Document titled Land Agreement Admitted in Evidence as a Receipt at the trial Court in coming to the conclusion that the land in Dispute belongs to the Claimant (Grounds one and two).
The Appellants Learned Senior Counsel submitted that Exhibit B was not the document pleaded by the Respondent in paragraph (ii) of his statement of claim as according to the Appellants what the Respondent (Claimant) pleaded was a registered Agreement to which a sketch map of the land in dispute was attached. That the Appellants objected to the admissibility of the unregistered registrable instrument but they were overruled. The appellants stated they are not complaining about the Ruling of the trial Court admitting the said land agreement but the error committed by the trial Court wherein the document admitted as exhibit B is different from document pleaded. That though the said land Agreement which is a registrable instrument was admitted as receipt evidencing land transaction, the Appellants contended the document was inadmissible because the Claimant did not plead is as a receipt. That the document ought to be expunched from the record for lack of pleading. That exhibit B has a space where it talked of the extent of the land but it was not linked with the sketch attached to exhibit B. That the learned trial judge was also wrong when he compared the signature of the 6th Appellant on Exhibit B with signature of the sketch map attached to exhibit B and came to conclusion that 6th Defendant who sold to Respondent signed the sketch map. That the land sold to Respondent by 6th appellant did not extend to land in dispute. That failure of the Respondent to tender registered document pleaded and relied on the case of HASSANA V. JAURO (2002) 25 WRN 18 at 35 that failure to produce document pleaded amounted to withholding evidence by Appellant. That the Respondent failed to prove his case and that his case ought to be dismissed. Their Senior Counsel urged the Court to resolve issue 1 in Appellants favour.
The respondents Learned Silk drew attention to the fact that the appellants admitted that they have no appeal against the Ruling of the trial Court admitting the land Agreement as a Receipt of land transaction on 14-11-2007. That what is remaining is the probative value of the document which according to the Respondent, the Learned Trial Judge evaluated exhaustively before applying it. That the Appellant actually pleaded the document he tendered in paragraph 7(ii) of the Further Amended Statement of Claim. That Respondent did not make any reference to any registered agreement before he tendered exhibit ýBý at the trial. That that aspect of the pleading which talked of registered Agreement is deemed abandoned by the claimant. That Exhibit B was properly admitted as written memorandum of the land transaction and it is admissible without it being registered. He relied on the case of BAMIDELE. V. DAUDA (2001) FWLR (Pt. 36) 908 at 924.
The Respondent justified the comparison of signature of 6th Appellant on exhibits B with 6th appellants signature on the sketch map attached to exhibit B as proper under Section 108 of the Evidence Act since 6th Appellant denied he did not sign the sketch. That in any event since 6th Appellant admitted his signature on Exhibit B it is also an admission he has knowledge that the sketch formed part of the said Exhibit B. He urged the Court to resolve issue One against Appellant.
The grouse of the Appellant is that the Respondent pleaded a registered document as evidence of title to the land in dispute but went out of his way to tender registrable instrument that was unregistered contrary to his pleadings. That the trial Judge has no right to receive the said document as receipt of land transaction when that was not the case put forward on the pleading by the Respondent.
The settled position of the law is that for a document to be admissible in evidence it must not only be pleaded but must be positively relevant to facts in issue or the subject matter. It must also fulfill any condition or conditions that may be prescribed in any law for its admissibly otherwise the document is inadmissible.
See: (1) OBA R.A.A. OYEDIRAN OF IGBONLA VS. HIS HIGHNESS OBA ALEBIOSU II & ORS (1992) 6 NWLR (PART 249) 550 at 5590 - G per KUTIGI JSC later CBN (Rtd)
(2) OKONKWO ONKONJI & ORS V. GEORGE NJOKANMA & ORS (1999) 14 INWLR (PART 638) 250 at 266 D - E where Supreme Court per ACHIKE, JSC laid down three main criteria for admissibility of documents in civil proceedings thus:
"The position of the law in relation to the question of admissibility of a document in evidence is that admissibility is one thing while the probative value that may be placed thereon is another. Three main criteria governing the admissibility of a document in evidence, are namely:-
(1) Is the document pleaded?
(2) Is it relevant to the inquiry being tried by the Court? And
(3) Is it admissible in law? See DUNIYA VS. JUMOH (1994) 3 NWLR (PT. 334) 609 AT 617 and OBA R.A.A. OYEDIRAN OF IGBONLA VS H.R.H. OBA ALEGIOSU II & ORS (1992) 6 NWLR (PT. 249) 550 AT 559."
The Respondent had pleaded in paragraph 7 (i) and (ii) of his further amended Statement of Claim as follows:
"7(i) The plaintiff avers that in February 1978, the 6th defendant sold the said land to him for the sum of N1,000.00 (One thousand naira) The said transaction look place in the presence of the following persons, namely:-
(1) Mrs Ahori, 6th defendantýs mother
(2) John Eduoro, 6th defendantýs step father
(3) Obiagboso Iwe 6th defendantýs kinsmen
(4) 5th defendantýs mother
(5) Dominic Ibe and Kingsley Ibe plaintiffýs relations
(6) Ichie Emmanuel Ibe Plaintiffýs father and
(7) The boundary neighbor
7(ii) The plaintiff paid the said sum of N1,000.00 to the 6th defendant in the presence of the above named persons. In addition to the said purchase money, the plaintiff gave customary items comprising one goal, eight yams, two gallons of palm wine and four kola nuts to bind the sale. Thereafter the plaintiff and the 6th defendant undertook a measurement of the said land and produced a sketch of the same and both signed the same subsequently, an Agreement was prepared to which the said sketch was annexed and the same was signed by the parties and their witnesses.
In 1990, the plaintiff caused a survey plan of the said land to be produced by Chief Surveyor J.O. Agugua. The plaintiff hereby pleads the said survey plan, No. AS A/IM 2582/90, an shall tender the same at the hearing. The plaintiff subsequently also registered the said Agreement Incorporating the sketch aforesaid. The said Agreement, dated the 14th day of February, 19978, at the trial."
Even though the Appellants objected to the admissibility of the Agreement pleaded on the ground that a registrable land instrument not registered is inadmissible for failure to comply with land instrument Registration Law. The learned trial Judge admitted the unregistered registrable instrument as admissible in evidence as a receipt and evidence of transaction between the parties as exhibit B with its attached sketch Plan of the land in dispute as pleaded by the Respondent.
I am certain in my mind that the learned trial Judge was on a strong wicket in admitting the document as receipt evidencing land transaction between the 6th Defendant and the Plaintiff now Respondent. The course followed by the trial Judge is in accord and consistent with settled principles and position of the law. It is admissible to establish equitable interest in land disputes.
See: IYIOLA OGUNJUMI & ORS VS MURTHALA ADEMOLU & ORS 1995 LPELR 2337 (sc) PAGE 61 PER KUTIGI, JSC LATER CJN
who said:
"To put it simply the law is that registrable instrument which are not registered are if pleaded admissible in evidence to prove not only payment of purchase money or rent but also to prove equitable interest where the purchaser or lessee is in possession"
2. MRS. OLUWASEUN AGBOOLA VS UNITED BANK FOR AFRICA PLC (2011) 11 NWLR (PART 1258) 375 at 406 E-G per MURHTAR, JSC later CJN who said:-
"I am satisfied that even though the document was not registered, and was so not admissible in view of the provision of Section (2) and (15) of the Land Instrument Registration Law, it was admissible for the purpose of establishing the transaction between the vendor and the purchaser.
In this respect, I endorse the finding of the learned Court of Appeal which reads thus:
"It is my considered view that exhibit D2 is admissible evidence to prove the fact that some money exchanged hands between the parties in exhibit D2 in this case N1,000.00 on account of the land transaction testified thereto."
3. ALHAJA BARAKAT ALAFIA & ORS VS GOODE VENTURES NIGERIA LIMITED & ORS LPELR 260065 (sc) delivered on 29/1/2016 pages 29-30 per GALADIMA, JSC
who said:
"The issue is really that non registration of Exhibit 2 does not render it admissible. I do not agree with the contention and submissions of the learned Silk for the Appellants on the legal effect and consequences of non registration of this Exhibit. In a number of authorities of this Court it has been held that a registrable instrument which has not been registered is admissible in proof of such equitable interest and proof of payment of purchaser, money or rent etc, SAVAGE V. SANROUGH (1937) 13 NLR 141. See OGUNBAMBI V. AABOWABA (1959) 13 WACA 22, FAKOYA V. ST PAUL??S CHURCH SAGAMU (1966) 1 ALL NLR 74 ONI V. ARIMORO (193) 3SC, OKOYE VS DUMAZE (NIG) LTD (1983) (SIC) 1 NWLR (PT. 4) 783 OGUNJUMO V. ADEMOLU (1995) 4 NWLR (Pt. 389) at 265"
More importantly there are admissions in paragraphs 7(i) and 7(ii) of Appellants Amended Statement of Defence acknowledging the receipt of N1,000.00 from the Respondent for the land sold to him by the 6th Defendant. The 6th Defendant did not at any time deny selling land to the Respondent as borne out in Exhibit B.
In any event where a particular document is pleaded by a party to a proceeding and the document is not tendered at the trial it will be taken that the pleader of the document abandoned same. It will not amount to withholding of evidence under Section 149 (d) of the Evidence Act Cap E14 LFN 2004 applicable when judgment was delivered in this matter. See: The Case of OBA R.A.A. OYEDIRAN OF IBONLAA V. HIS HIGHNESS OBA ALEBIOSU II & ORS (1992) 6 NWLR (PART 249) 550 at 556 H to 557 A per KUTIGI, JSC later CJN who said:
About the other letter pleaded in paragraph. 10 of 3rd respondents Statement of Defence and which was not tendered, the law is simply that that paragraph of the pleading is deemed to have been abandoned I must say in both cases the provision of Section 149 (d) of the Evidence Act would hardly be applicable since there was no issue of withholding evidence and at any rate it was for the plaintiff/Appellant as distinct from the defendants/respondents to prove his case on a balance of probabilities."
In this case the Respondent has chosen to tender one of the two documents pleaded in paragraph 7 of the further Amended Statement of claim. That should not involve any dissipation of energy by the Appellants. They (appellants) have not shown the miscarriage of justice they suffered therefrom. Exhibit B was properly admitted and accorded weight by the learned trial Judge.
The Appellants have also contended that the trial Judge was wrong in comparing the signature on the sketch attached in order to discover whether 6th Defendant who denied his signature on it actually signed the same. The trial Judge compared the signature on Exhibit B which was acknowledged by the 6th Defendant as vendor to Respondent, with signature on the sketch map attached to Exhibit B describing the extent of land sold to Respondent by 6th Defendant (now 6th Appellant) The Learned trial judge did the right thing in comparing the disputed signature on the sketch with 6th Appellants signature on Exhibit B which is not disputed by 6th appellant in order to discover where the truth lies. The trial Judge was right and his finding that 6th Appellant signed both the land Agreement and the sketch to it cannot be faulted. See: CHIEF VICTOR NDOMA-EGBA VS A.C.B PLC (2005) 14, NWLR (Part 944) 79 at - 105 - 106 Per OGUNTADE, JSC, who said:
Section 108 (1) of the Evidence Act, Cap 112 Laws of the Federation, 1990 provides:
108 (1) In order to ascertain whether a signature, writing seal or Finger impression is that of the person by whom it purports to have been written or made any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing seal or finger impression has not been produced or proved for any other purpose.
In Wilcox v. Queen (1961) 2 SCNLR 296, De Lestang CJ, Federal Supreme Court of Nigeria observed.
It is not unusual for the Courts in a clear case to form their own opinion as to handwriting and in R v. Smith 3 Cr App. R. 87 as well as in Rex v. Rickard, upon which Mr. David relies, the Court of Criminal Appeal in England formed its own opinion by comparing alledged Signature to be that (of) appellant with a genuine specimen of his handwriting. So also did the West African Court of Appeal in R v. Apena, 13 W.A.C.A. 173. In the present case, the dissimilarities between the signatures on the cheque and the genuine signature of Nwobu are apparent to the naked eye and, in our view, the course pursued by the learned Judge was not improper in the circumstances.
Issue 1 is resolved against the Appellants.
ISSUE 2
Whether the Trial Judge was right in rejecting the 1st Defendantý??s case on the ground that the 1st Defendant did not file a counter Claim and did not tender any document evidencing his purchase of the land in dispute (Ground Three and Four).
The Appellants drew attention to the finding of the trial judge against the 1st Appellant to the effect that though the 1st appellant claimed to be the owner of the land in dispute yet he neither filed a Counter claim against Respondent nor did he file an action against the Respondent.
To the appellants, the trial Court had indulged on extraneous facts to find against the appellants and has thereon misplaced the onus of proof in the land dispute on the 1st Defendant. That the finding was wrong and perverse. That the fact that the Defendant did not file an action in respect of the land cannot put 1st appellant at a disadvantage in the case. That there is no dispute between 1st Defendant and the 5th Defendant as to whether the 5th Defendant sold land in dispute to the 1st Defendant. That the parties did not join issue as to whether the 5th Defendant sold land to the 1st Defendant. That both on the pleadings and evidence there is undisputed fact that the 5th Defendant said that he sold the land in dispute to the 1st Defendant. Appellants therefore submitted that the trial Judge was wrong in his judgment when he held against 1st Defendant that he did not give evidence or pleaded how much he paid to 5th Defendant over the alleged sale of the land to him and that 1st Defendant did not tender any document apart from merely stating that he bought from 5th Respondent.
ý??That the Plaintiff claimed he bought the land from 6th Appellant. That the onus was on him to establish his ownership of the land more so that Appellants had denied selling the land in dispute to Respondent. That the evidence of 6th Defendant was evidence against interest and that the trial Judge was wrong in disbelieving 6th Defendant. He urged this Court to resolve issue 2 against the Respondent.
In reply to the above, the Respondent argued that most of the findings of the trial Judge which appellants are now complaining about were not appealed against. He submitted that an appeal is a challenge to the decision of a Court and not necessarily the reason for the decision and that it is not every error or slip of the trial Court will lead to reversal of the judgment and that it is only an error and decision that has led to miscarriage of justice that would be set aside. He relied on numerous cases including NNADI v. AMADI (2011) 4 NWLR (Part 1238) 553 at 570 F-H and SPRING BANK PLC VS ADEKUNLE (2011) 1 NWLR (Part 1229) 581 AT 599 D-G.
The Respondent submitted that there are f