"...the trial Court was wrong, in my view, to have implied that the Section 149(d) of the Evidence Act 1990 (now Section 167(d) of the 2011 Act) would operate against the Appellant for failing to call a witness (one Samuel Onwuli Nwokocha). Appellant appeared to rely on the said observation by the trial Court. But the said observation was an obiter, that Appellant's failure to produce the said Samuel Onwuli Nwokocha to testify for them (Appellant) would raise the presumption of law (Section 149(d) of the Evidence Act 1990) against Appellant. It was not the basis of the decision of the trial Court, adjudging the claim for the Respondent, as there were sufficient evidence before the Court to decide the case for Respondent. The trial Court had said: "There is no evidence to show that the said Samuel Onwuli Nwokocha is no longer the family head. Under cross examination that Defendant admitted that he (Samuel Onwuli Nwokocha) is still living and is indeed the traditional ruler of their people. He was not called to support the defendant's case as a witness. By the nature of the pleading this person is one whose evidence would have assisted the Court in arriving at a decision in the case. The failure of the defendant to call him, apart from regarding the pleading as abandoned, would raise the presumption of law that if called, the evidence he would give would be against the defendant. See Section 149(d) of the Evidence Act, Laws of the Federation of Nigeria, 1990." See pages 180 - 181 of the Records of Appeal. Of course, by law the trial Court ought not to have made that inference, as it would suggest that Appellant had a burden of proof in the case. But as argued by the Counsel for the Respondent, and I agree with him, that slip did not go to the substance of the decision of the trial Court, and was not the basis of the decision giving judgment to the Respondent. In the recent decision of this Court in the case of CA/OW/301/2013: ADIBE IGBOJIONU & ORS VS NWACHUKWU UKO & ORS, delivered on 26/10/2018 Published as(2018) LPELR - 45875 CA, we held, as follows: "Appellant had quarreled that the trial Court presumed Section 149(d) of the Evidence Act, 1990, against them for failure to produce a witness to support their claims, that the Plaintiffs were strangers; that they had claimed that some elders (who were still alive) had witnessed the arrival and settlement of the Plaintiffs' ancestors at Ndioze compound, but failed to produce any of the elders to give evidence. Thus, such failure be presumed against the Appellants - withholding evidence! I agree that the trial Court was wrong to invoke that presumption, in the circumstances of this case. But I also think the fire works by Counsel, from both sides, on this issue were clearly unnecessary, as the said presumption of Section 149(d) of the Evidence Act, 1990 (now 167(d) of the Evidence Act, 2011) did not reduce and could not have discounted the overwhelming evidence that entitled the Respondents to judgment on the preponderance of evidence. That means, as argued by Respondents, even if the trial Court did not make that error of invoking the presumption, the available evidence was enough to lead to the same conclusion, that the Respondents had proved their claim and were entitled to judgment. I have already said that the trial Judge, in my opinion, was wrong to have resorted to the presumption of Section 149(d) of the Evidence Act... The reason for this is obvious, that Appellants (as Defendants) did not have any case to prove, being defendants in the Suit, having not filed a Counter Claim. The burden of proof, in the case, resided with the Respondents, who took out the Suit, and they had a duty to prove their claims, and on the strength of their evidence, not on the weakness of the defence. A.G. Cross River Vs A.G. Federation (2012) LPELR - 9335 (SC); Nduul Vs Wayo & Ors (2018) LPELR - 45151 (SC)." The above case is apposite to this case on the point that the error of the trial Court in presuming the Section 149(d) of the Evidence Act, 1990, cannot vitiate the decision and conclusion of the trial Court granting title to the Respondent, upon the available credible evidence that they had established their root of title to the land in dispute." In ENYEREIBE NWAOBILO v. AKOBUNDU AHUKANNA Suit No; CA/OW/155/2009 Per MBABA, J.C.A. (Pp. 25-28, Paras. B-E)