The subject-matter in dispute is the plot of land with the Total Filling Station situate along Ahmadu Bello Way Sabon Gari Idah opposite St. Boniface Primary School Idah. It is the Plaintiffs' case that the Right of Occupancy No.13457 of that plot of land measuring 0.9 acres was by a letter No.H1027/10 dated 22nd December, 1964 (Exh. 6) granted to their late father by the then Government of Northern Nigeria, Kaduna. Their father thereafter paid annual rents. In 1966, he, with the approval of Government sub-leased a portion of the land to Total Nigeria Ltd. and the company erected a filling station thereon. By a letter dated 26th June, 1970, from Ministry of Works and Surveys, Lands office Lokoja (Exh. 3) the Plaintiffs' father was told that his right of occupancy had been revoked in favour of Ukwenya Utenu the 2nd the Defendant. Upon enquiry by the Plaintiffs' father, he received another letter January, 1971 (Exh. 8) to the effect that his right of occupancy was still in tact. It is the Plaintiffs' contention that as the administrators of their late father's estate, they are entitled to the land in dispute.

The 1st Defendant, Emmanuel Ilona (Appellant) is a petroleum marketer. He pleaded and testified that the portion of land in dispute upon which the Total Filing Station was erected is his property. He stated that the Filing Station with two underground tanks, two pumps and a salesroom was constructed by the Total Nigeria Ltd. on the assumption that the land housing the station belonged to the Plaintiff's father. However, after investigation at the Land Office Markurdi it became evident that the Plaintiffs' father had no title to the land. Consequently, he applied for the land which application was approved by the Governor of Borno State. He was accordingly issued with the Right of Occupancy, Certificate of Occupancy with the site plan- Exhs. D1, D1A and D1B respectively. Thereafter, he erected a fence at the rear of the plot, replaced the underground tanks with two large tanks and one additional one and concreted the drive way and all these he did to the knowledge of the Plaintiffs who did not protest.

The 2nd Defendant, Ukwenya Utenu dies before giving evidence and was substituted by his son Nathanial Ukwenya Ochijenu who testified to the effect that the entire land in dispute belonged to his father who inherited it from his father Ukuleno Onoje. It was the latter who first deforested and appropriate the land for farming and other uses. He said that his father and the Plaintiff's father had disputed over the land in dispute leading to investigations by land officers from Kaduna and the eventual revocation (Exh. 3) of the Right of Occupancy (Exh. 6) purportedly issued to the Plaintiffs' father. The witness also gave account of series of litigations between his father and the Plaintiffs' father and tendered as Exhs. D2 and 5, record of proceedings and judgment in those cases.

After the parties had concluded their oral evidence, learned counsel for the Plaintiffs informed the Court that his clients and the 2nd Defendant had reached a settlement out of Court and that a memorandum to that effect had been filed in Court. In his reaction, the learned trial Judge Ochimana J. in his judgment delivered on 24th October, 1994 entered a consent judgment in the following terms: -

"By this terms of settlement the Plaintiffs and the 2nd Defendant had reached an amicable settlement. In the circumstance judgment is hereby entered as between the Plaintiffs and 2nd Defendant in the terms of their settlement. The portion of land measuring 100ft by 100ft in which stood the uncompleted building opposite St. Boniface Primary School, Sabon Gari, Idah shall now vest in the Plaintiffs while the remaining portion of the land extending to the fence of the Total Filling Station is declared for the 2nd Defendant. This brings to an end the series of litigations between the parties."

There is no appeal against that consent judgment as between the Plaintiffs and the 2nd Defendant. The trial Court proceeded to consider the case as between the Plaintiffs and the 1st Defendant, Emmanuel Ilona and after reviewing the evidence and the written addresses of learned counsel, it dismissed the Plaintiffs' claim on the ground that they had failed to prove their case against the 1st Defendant on the preponderance of evidence to entitle them to Judgment. Being aggrieved by this judgment, the Plaintiffs lodged an appeal against it to the Court of Appeal which in a unanimous decision delivered on 13th January, 1998 allowed the appeal, set aside the judgment of the trial Court and vested on the Plaintiffs' late father the title to the land covered by the Total Filling Station at Sabon Gari Idah. The 1st Defendant is now challenging that judgment by his appeal to this Court.