The principal witness for the respondent (in tact lour witnesses testified in support of his case) made admissions about the appellant's long and effective occupation of portions of the land in dispute. That the learned trial Judge failed to consider adequately or at all the effect of these admissions and how inconsistent they are with his (respondent's) claim to exclusive possession. That during the course of the hearing, the learned trial Judge had granted the respondent adjournment to enable him amend his pleadings while later refusing Appellant's similar application to amend his pleadings substantially to tally with the evidence already elicited in cross-examination even though the said application had not been filed at the time it was heard. The learned trial Judge, it is further stated, relied on evidence allegedly given by the appellant in previous proceedings, condi¬tions for the admission of such evidence neither having been satisfied nor tendered in court. That the learned trial Judge did not ensure that all those to be affected by the order for injunction and possession are made parties to the case moreso, that both parties had in their pleadings, plans and evidence disclosed that there were third parties in actual physical p6ssession and occu¬pation of the land in dispute even before the institution of the present pro¬ceedings. Furthermore, it is maintained, the learned trial Judge having held that the respondent had abandoned his claim for a right of occupancy during the course of his counsel's final address and proceeded to order "ACTION ALLOWED", that connotes that the respondent is entitled to all the reliefs sought in the suit including that abandoned.

The facts as viewed from the respondent's perspective are:-That the four witnesses including the respondent's Attorney (P.W.I) who testified in support of his case showed maximum acts of possession on the land in dispute. That P.W.I testified also that the rights of the respon¬dent in respect of the said land had previously been pronounced upon by a High Court in Suit No. A/229/74 (Exhibit 3) between the respondent and the Umuagharanya family from whom the appellant allegedly bought the land. That the appellant who testified for his landlords (the Umuagharanya family) admitted this fact. That the respondent had also been issued with a Certificate of Occupancy in respect of the land in dispute (Exhibit 5) after the judgment in Exhibit 3 thus making him no longer to pursue his claim for a declaration which he consequently abandoned. That the only amendment he made, and this without an adjournment, was his Statement of Claim where he applied to delete the words "of lease". That the appellant on the other hand filed two motions to amend his Statement of Defence, withdrew them and they were accordingly struck out as exemplified on page 91 lines 12-14. That the trial court had cause to comment on delay tactics by the appellant following an observation by his counsel that the original Statement of Defence filed in the Suit had been withdrawn and there was thus no Statement of Defence before the court vide page 107 lines 28-34 of the Record. That the appellant subsequently filed another motion after the respondent had closed his case to amend his Statement of Defence in a manner similar to the earlier motions that were struck out and that the learned Judge in a considered rul¬ing dismissed the application. The respondent, it is further stated, called third parties who were on the disputed land by his permission to testify in support of his ease while the appellant kept away his so-called tenants and made no application to have them joined. Nor did the third parties them¬selves make any such application; rather they stood by while this suit and the previous one were being fought. That in view of the overwhelming evidence in favour of the respondent, the learned trial Judge entered judgment for him in the sum of N2,000.00 as general damages for trespass and injunction with costs assessed at N1,000.00.

Being dissatisfied with the decision the appellant appealed to the Court of appeal.