AKPADIAHA v. UKO (2017)

In The Court of Appeal of Nigeria

On Friday, the 17th day of March, 2017

CA/C/98/2014

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

EMMANUEL EBONG AKPADIAHA Appellant(s)

AND

USORO HARRY UKO Respondent(s)

…………………….A…………………….

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Akwa Ibom High Court holden at the Uyo Judicial Division delivered on the 31st day of October, 2013 in Suit No. HEK/103/2000.The Respondents as Plaintiffs in the Court below sued the Appellant in a representative capacity as representing themselves and Uko Family of Ikot Ebo Village, Eket, Akwa Ibom State. The Respondents in their Writ of Summons and Statement of Claim filed respectively on 6th June, 2000 and 5th April, 2001 in the Lower Court claimed against the Appellant as follows:
a) A Declaration that the Plaintiffs are entitled to the Statutory Right of Occupancy in respect of the land called “Ndon Iko Ekpu lying and situate at Ikot Ebok in Eket Township, Eket Local Government Area, Akwa Ibom State.
b) A perpetual injunction restraining the Defendant by themselves, their agents, servants or privies from further entering, using or remaining on the said land. (The Plaintiffs not being in possession of the land obtained an Order from the Court on 21st November, 2000 after the filing of 
the case for the Defendant to allow them to enter the land and survey same).
c) N50,000.00 (Fifty Thousand Naira) only being general damages for trespass.

At the hearing of this claim, the Respondent (Appellant) further amended his statement of defence to introduce the issue of limitation of action. The Learned Counsel for the Appellant in his further amended statement of defence and counter claim pleaded that the claim before the Lower Court was statute barred. He relied on Sections 1, 2(2) 3(1) and (2) and 4 of the Limitation Law, Cap 78 Vol. 4, Laws of Akwa Ibom State, 2000. This objection was argued and heard by the Lower Court. The Lower Court overruled the objection and continued with the hearing of the case to conclusion on merit. At the end of the trial, the Lower Court granted the claim of the Plaintiff/Respondent against the Defendant/Appellant. While all the reliefs of the Plaintiff/Respondent were granted the counter-claim of the Defendant/Appellant was dismissed. Aggrieved by the decision of the Lower Court, the Appellant filed a notice of appeal on 23rd December, 2013. The Record of Appeal was compiled and transmitted to this Court on 11th March, 2014.
The Appellant’s reply brief was filed on 13th February, 2015 but deemed properly filed and served on 10th May, 2016. The Respondent filed his own brief on 15th December, 2015 but it was also deemed properly filed and served on 10th May, 2016. The Appellant filed a reply brief on 7th June, 2016 but it was deemed properly filed and served on 17th January, 2017.
At the hearing of this appeal, the Appellant adopted his two briefs and urged the Court to allow this appeal. The Respondent in his own case adopted his brief and urged the Court to dismiss this appeal.
The Appellant raised five (5) issues for determination. These issues are listed as follows:
1. ISSUE NO. 1: This issue is distilled from Ground 1 of the Notice and Grounds of Appeal filed by the Appellant thus:
WHETHER THE CASE OF THE RESPONDENTS WAS NOT STATUTE BARRED AT THE TIME THE RESPONDENTS COMMENCED THE CASE IN THE COURT BELOW AND THERETO ROB THE TRIAL COURT THE JURISDICTION TO ENTERTAIN THE SUIT.
2. ISSUE NO. 2: This issue is formulated from Ground 2 of the Notice and Grounds of Appeal thus:
WHETHER FROM THE FACTS AND 
CIRCUMSTANCES OF THE CASE THE RESPONDENTS SUFFICIENTLY PROVED THEIR CASE ON THE PREPONDERANCE OF EVIDENCE.
3. ISSUE NO. 3: This issue is formulated from Ground 3 of the Notice and Grounds of Appeal filed by the Appellant thus:

…………………….B…………………….

WHETHER THE LAND WHICH THE APPELLANT’S GREAT GRAND MOTHER AND GRAND MOTHER WERE GIVEN TO SETTLE AS MOTHER OF TWINS AND THE TWINS IS THE FAMILY LAND OF THE RESPONDENTS AND IF NOT, WHETHER THE APPELLANT WAS NOT ENTITLED TO HIS COUNTER-CLAIM.
4. ISSUE NO. 4: This is settled from Ground 4 of the Notice and Grounds of Appeal thus:
WHETHER THE FAILURE OF THE LEARNED TRIAL JUDGE TO ALL ON THE APPELLANT TO CONDUCT HIS CASE BY HIMSELF WHEN THE COURT NOTICED THAT THE APPELLANT’S COUNSEL WAS ALWAYS ABSENTING HIMSELF FROM COURT IS NOT A BREACH OF THE APPELLANT’S FUNDAMENTAL RIGHT TO FAIR HEARING.
5. ISSUE NO. 5:
WHETHER THE LEARNED TRIAL JUDGE PROPERLY ACCESSED AND EVALUATED THE EVIDENCE OF THE PARTIES.
The Respondent in his own brief proposed also five (5) issues for determination. These issues are couched as follows:-
(i) Whether the learned Judge was wrong in holding that the suit at the Lower Court was not statute barred considering the facts and circumstances of the case (Ground 1).
(ii) Whether the Respondent did not prove his case to be entitled to judgment at the Lower Court
(Ground 2).
(iii) Whether the trial Court was wrong in dismissing the counterclaim of the Appellant in respect of the land in dispute (Ground 3).
(iv) Whether Appellant can be said in law to have been denied fair hearing in the circumstances of this case at the trail Court (Ground 4).
(v) Whether the learned trial Judge did not properly evaluate the evidence of the parties in law (Ground 5).

From the issues proposed by the parties for determination, it is very clear that the issues in the Appellant’s brief are the same with the issues generated in the Respondent’s brief. The only modification is that of variation in the words and tenses used. These five (5) issues generated will therefore be considered using the issues generated by the Appellant in his brief as a guide. I shall then start with issue one.
ISSUE ONE
This issue is whether the suit of the Respondents as Claimants before the Lower Court was statute barred having regards to the provisions of Section 1, 2(2) and 3(1) and (2) of the Limitation Law, Cap 78, Vol. 4 Laws of Akwa Ibom State.
The Learned Counsel for the Appellant canvassed that this Court should resolve the issue in favour of the Appellant. That the Lower Court had no jurisdiction to entertain the claim of the Plaintiff because it was statute barred. That the issue of jurisdiction is at the foundation of every case before the Court. He refers to the cases ofOKOLO VS. UNION BANK OF NIG. PLC (2004) ALL FWLR (PT. 197); OLOBA VS. AKEREJA (1988) 3 NWLR (Pt. 84) 508, 520.
He contended that the Court Below did not have jurisdiction to entertain the case of the Respondents going by the provision of Sections 1, 2(1) (2), 3(1) (2) and 4 of Part 1, Cap. 78, Laws of Akwa Ibom State 2000. That the provision of the Law herein stated bars any person from taking any action in Court to claim land after the period of ten (10) years. He cited Section 1 of Part 1, Cap. 78, Limitation Law of Akwa Ibom State, 2000. He canvassed that to ascertain whether the Respondents’ suit was brought within the time provided, it is therefore important to

…………………….C…………………….

determine first when the cause of action arose. As a guide to the determination of when the cause of action arose, it is my believe that Section 2(1) and (2) of the Limitation Law, Cap. 78, Laws of Akwa Ibom State 2000provides the lee way and that provision of the law must be examined. The provisions of these sections of the Limitation Law do give direction as to when a cause of action can be said to have arisen.
The Learned Counsel canvassed further that by the combined effect of the provisions of Section 2(1) and (2) of the Limitation Law of Akwa Ibom State, the cause and right of action by the Respondents arose when the Appellant was first noticed on the land. The learned counsel further contended that the averments of the Appellant in his further amended Statement of Defence/Counter-Claim if taken together with the oral evidence led by the Appellant and his witness and the Survey Plan of the land which was admitted as Exhibit C – See page 283 of the Record of Appeal, further made strong the stand of the Appellant. Is submitted that as at 1979 when Chief Wilson Uko died, the land was already in the positive control of the Appellant. That the period of limitation started to run in 1979 when the Respondents first noticed the Appellant on the land. The learned counsel opined that to determine whether an action is statute barred, it is note worthy that all that is required is for one to examine the writ of summons and statement of claim to see when the wrong alleged was committed which gave the Respondents a cause of action and comparing that date with the date which the writ of summons was filed. If the time and or date on the writ of summons are beyond the period allowed by the Limitation Law, then the action is statute barred.
Appellant’s Counsel submitted therefore, that from 1979 wherein the Respondents noticed the Appellant on the land to 2000 when the writ of summons was filed, the Respondents’ case was statute barred because the case was filed about 21 years or more after the death of late Chief Wilson Uko. He relied on the case of BALA HASSAN VS. BABANGIDA ALIYU (2010) 43 NSCQR 139, 220. He urged this Court to resolve the issue in favour of the Appellant.
The Respondent in the brief of argument submitted that the Lower Court was right to have ruled that the suit was not statute barred. The Learned Counsel for the Respondents contended that it is the Plaintiffs’ claim that determines the jurisdiction of a Court. He relied on the cases of ADEYEMI VS. OPEYORI (1976) 9-10 SC 31, 49; FAYEMI VS. ONI (2011) ALL FWLR (PT. 554) 1, 66-67. Counsel contended that it is the reliefs sought that defines the scope of the claim of the Plaintiff. Counsel then took the relief claimed one after the other. That reliefs 2 and 3 deal with damages and injunction against trespass. That in respect of relief 1, the issue of limitation will have to be viewed from the writ of summons and the statement of claim. He relied on the cases of ELABANJO VS. DAWODU (2006) 27 NSCQR 318, 323; AND AROWOLO VS. AKAPO (2004) ALL FWLR (PT. 208) 807, 813. He further pointed out that the Respondent’s Reply to the Statement of Defence and Counter-claim is part of his pleadings and that the trial Court was right in considering them. He relied on the case ofWOHEREM vs. EMEREUWA (2000) 3 NWLR (PT. 650) 529, 538, 539. The Learned Counsel summed the position of the claim in paragraph 4.11 of his brief and concluded by saying that the intention of the Limitation Law was not to be used as an instrument of oppression to appropriate peoples land even where one is living on the land with the consent of the owners. He urged this Court to resolve this issue in favour of the Respondent.
On this issue of limitation, the fundamental principle that has been ironed out from a plethora of authorities is the fact that where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be properly or validly instituted or prosecuted after the expiration of the prescribed period. Capacity to take legal proceedings in Court over the matter is foreclosed if the step is not taken within the time set by the law. The implication or effect of limitation law is that where an action is statute barred a Claimant who might otherwise have had a valid cause of action loses the right to enforce it by judicial process because of the lapse of time.

…………………….D…………………….

See the cases of AREMO II VS. ADEKANYE (2004) 13 NWLR (PT. 891) 572; SANDA VS. KUKAWA LOCAL GOVT. & ANOR. (1991) 2 NWLR (PT. 174) 379, 381, 389; NPA PLC VS. LOTUS PLASTICS LTD. (2005) 19 NWLR (PT. 959) 158; P. N. UDOH TRADING CO. LTD. VS. ABERE (2001) 11 NWLR (PT. 723) 114; IBRAHIM VS. JSC (1998) 14 NWLR (PT. 584) 1. The limitation so called must be limitation imposed by a statute. That is why such statutes are known as Statutes of Limitation. They limit time to take action. Failure to comply has fatal consequences to any action that is filed in Court after the expiration of time. The good thing about it is the fact that limitation period can never exist in obscurity. Everybody must see it as specific as it is in the language of the statute concerned.
The Limitation Law in question is the Limitation Law of Akwa Ibom State, Cap 78, Laws of Akwa Ibom State of Nigeria, 2000. The relevant sections of this law germane to the instant case are Sections 1, 2(1) and 2(2). I wish to reproduce them as follows:
Section 1:
“No action shall be brought by any person to recover any land after the expiration of 10 years from the date of which the right of action accrued to him, if it first accrued to some person through whom he claims.
Section 2(1):
“Where the person bringing an action to recover land, or some person through whom he claims has been in possession thereof, and has while 
entitled been disposed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinued.
Section 2(2):
“Where any person brings an action to recover land of a deceased person, whether under a Will or on intestacy, and the deceased person was on the date of his death in possession of the land and was the last person entitled to the land to be in possession thereof, the right of action shall be deemed to have accrued on the date of his death.

Section 1 of the Law sets the limit of ten years for claim or recovery of land. The time is statutorily scheduled to run from the date the cause of action accrues. The accrual date in Section 1 is of a broader nature and it is made to be for all situations pertaining to the claim or recovery of land. I can say with certainty here that the issue of accrual of cause of action can only be settled based on the facts and circumstances of the case. The facts to be generated or gathered from the evidence before the Court, shall be considered vis-a-vis the reliefs claimed by the Plaintiff before the Lower Court. The law set out the guide as to when one can say a cause of action has accrued in the three scenarios mentioned in the law. The first scenario is where one claims land from any adversary including those he may want to claim through. The second scenario is the situation where one is dispossessed of his possession of the land. The last scenario is where the land recovery is for the land of a deceased. The combination of these three scenarios offers to us a major guide to the cause of action before the Lower Court.
In the instant case, the cause of action is from the statement of claim as follows:
(1) The declaration that the Plaintiffs are entitled to the Statutory Right of Occupancy in respect of the piece or parcel of land known and called “Ndon Iko Ekpu lying and situate at Ikot Ebok in Eket Township, Eket Local Government Area.
(2) N50,000.00 (Fifty Thousand Naira) being general damages for trespass.
(3) A perpetual injunction restraining the Defendant by himself his agents, servants or privies from further entering, using or remaining on the said land. The writ was taken out on 6th day of June, 2000.

The Defendant counter-claimed which in

…………………….E…………………….

the amended statement of defence at pages 165 to 172, is as follows:
29. At the trial of this suit, the Defendant shall maintain and rely on all legal defences open to him in this suit including the principles of laches and acquiescence especially as the Defendant has lived on the land in dispute for over (30) thirty years without any challenge from the Plaintiffs.
30. The Defendant shall at the trial Counter-Claim from the Plaintiffs for challenging the Defendant as to his ownership and possession of the same land in disputed and shall Claim N100,000.00 (One Hundred Thousand Naira) damages and perpetual injunction restraining the Plaintiffs from trespassing, disturbing and or challenging the Defendant in his use and possession of the said land.
COUNTER-CLAIM
1. The Defendant, for purpose of counter claim repeats all the averments contained in paragraphs 1-30 of the Amended Statement of Defence herein.
2. The Defendant has over the years exercised all maximum acts of ownership on the said land by building house, burying deceased persons and farming and cultivating seasonal crops on the said land.
3. The Defendant also has lived on 
the said land for over 30 years before the action was contemplated and filed.
4. The Defendant claims therefore from the Plaintiffs since the Plaintiffs have dared to challenge the ownership and possession of the said land from the Defendant as
follows:
(a) Declaration of Title to the said land known as and called “Ndon Iko Ekpu” situate at Ikot Ebok village Eket, Eket Local Government Area, Akwa Ibom State based on the Defendant’s Survey Plan filed in this suit. The Defendant shall rely on all boundaries described and delineated on the said plan.
(b) The sum of N100,000.00 (One Hundred Million Naira) against the Plaintiffs.
(c) Perpetual injunction against Plaintiffs their agents and or privies.

It is very significant and remarkable to note that apart from paragraph 29 of the Defendant’s statement of defence pleading his reliance on all legal defences including laches and acquiescence, there is no where the plea of statute of limitation was made. The plea of limitation as contemplated under the Limitation Law of Akwa Ibom State and as is well known in our procedural laws is a plea of time. It is in that wise a requirement that the special plea of it be laid before the Court so that the time of accrual of the cause of action can be deciphered without any conjecture. In the case of a P. N, UDOH TRADING COMPANY LTD. VS. ABERE (2001) 11 NWLR (PT.723) 114, the Supreme Court per Karibi – Whyte, JSC held:
“It seems to me therefore that all that is necessary for the pleading of the defence of statute of limitation is to plead facts enabling the Court to hold that the action is statute – barred. Otherwise, the statement of defence will be pleading evidence contrary to the rules of pleading. What is to be pleaded are facts and not the law relied upon.”
Generally, it is the belief of the law that where there is a wrong there is a remedy and when it comes to dispensing of the remedy the Law cannot be helpless. This, notwithstanding, the law expects that everyone who has a right to claim must be alive to his responsibilities in claiming such right as and when due. The law does not encourage anyone to sleep on his right, possibly snore, and saunter into dreamland and slumber. Then come out when everyone in the community has moved on to begin the agitation for his stale right. That is why the law brings up statutory and equitable defences to aid the vigilant against the indolent. It is also meant to safeguard the society which is covered by the well crafted public policy that there should be an end to litigation. This had earlier on been expressed by this Court in

…………………….F…………………….

the case of MERCANTILE BANK (NIG.) LTD. VS. FETECO (1998) 3 NWLR (PT. 540) 143, 156 where Tobi JCA (as he then was) held:
A statute of limitation is designed to stop or avoid situations where a Plaintiff can commence an action anytime he feels like doing so even when human memory would have normally faded and therefore failed. Putting it in another language by the statute of limitation, a Plaintiff has not the freedom of the air to sleep or slumber and wake up at his own time to commence an action against a Defendant. The different statutes of limitation which are essentially founded on the principles of equity and fair play will not avail such a sleeping or slumbering Plaintiff.”
That aptly captures the philosophy of the Limitation Statutes.
It must be emphasized at this point however, that for a Defendant to benefit or deploy the statutory and the equitable defences, such a Defendant must plead specifically the defences. See OJIOGU VS. OJIOGU (2010) 9 NWLR (PT. 1198) 1; P. N. UDOH TRADING CO. LTD. VS. ABERE (supra); ALEX O. ONWUCHEKWA VS. NDIC (2002) 2 SC (PT. 11) 28, 34; AND SULGRAVE HOLDINGS INT. VS. FGN (2012) 17 NWLR (PT. 1329) 309. It follows therefore that a party relying on a plea of limitation must plead with sufficient particulars facts necessary to justify the plea of limitation.
In the instant case, the Lower Court had considered in a ruling for preliminary objection dealing with the plea of statutory limitation which plea was overruled. In his judgment appealed upon to this Court, he held as captured at page 337 of the Record as follows:
One of the issues raised by the Defendant’s Counsel is whether the suit is statute-bared. I am surprised that the Counsel raised that issue again. After the Defendant had opened his defence in the case, the Defendant’s Counsel had raised the issue of the suit being statute-barred by way of preliminary objection filed on 27th January, 2011. The Claimant and his counsel seriously contested the preliminary objection. In my comprehensive considered ruling delivered on 30th June, 2011, I reproduced paragraph 6(6) of the Claimant’s reply to the Statement of Defence and added “that averment shows that in relation to the land dispute, final cause of action may not have accrued as at 1997. Therefore, a suit instituted three years after in the year 2000 could not have been statute-barred. I hold that the action is not statute-barred. Consequently, it is ordered that the preliminary objection be and is hereby dismissed…” The Defendant did not appeal against that ruling.
It is obvious from the decision of the Lower Court that the particulars or facts averred to in the pleadings of the Claimant were used by the Lower Court to arrived at the finding that the suit was not statute barred. This was definitely so because there were no sufficient particulars as to when the cause of action arose in the pleadings of the Defendant before the Lower Court. Since there were no better particulars offered by the Respondent over his claim of statute of limitation the finding of the Lower Court is unassailable.
I am therefore of the firm view that the Lower Court was right in holding that the claim was not barred statutorily. Issue one is therefore resolved in favour of the Respondent.
Issues two and five as raised by the Appellant are similar in content. These two issues shall be looked into together. I set them down for consideration now.
ISSUES TWO AND FIVE
These two issues deal with whether from the facts and circumstances of the case, the Respondents sufficiently proved their case and whether the trial Court properly assessed and evaluated the evidence of the parties.

…………………….G…………………….

The learned Counsel for the Appellant in his brief canvassed that to establish the ownership of the land by the family of Uko which the Respondents represented, the Respondents averred in the Statement of Claim that: ” the land in dispute is a part of the land deforested by Chief Uko Enoudo the grandfather of the Plaintiffs. That Chief Uko married many wives and had many children. His children included late Chief Wilson Uko, late Prince Harry Uko and late Prince Etesin Uko. Chief Uko Enoudo according to the Plaintiffs farmed on a part of this land and gave out the other part to twin mothers to live in, since at that time twin mothers were not allowed to live with other people…” – See paragraph 5 of Statement of Claim. Other averments in the Statement of Claim revealed that the mother of the twin who was given the land in dispute to live at the time it was an evil forest, was the great grandmother of the Appellant and one of the twins who lived in the forest (land in dispute) with their mother was said to be the grandmother of the Appellant – See paragraphs 6, 7, 8 and 9 of the Statement of Claim on pages 22 and 23 of the Record.
In dispute is part of the land deforested by Chief Uko Enoudo the grandfather of the Plaintiff… See paragraph 5 of the Statement of Claim of page 22 of the Record. All other averments in the Statement of Claim at page 22 of the Record and Reply to the Statement of Defence in page 40 of the Record centered on late Chief Wilson Uko and the late mother of Chief Wilson Uko who gave birth to twins and was given the land to live with the twins since it was an abomination for the twins mother to live with other people in the family. The Law is settled that in a case involving declaration of title to land, the Plaintiff who approached the Court must rely on the strength of his case and not on the weakness of the Defendant’s case. The Plaintiff in such circumstances has a duty to satisfy the Court that he is entitled on the evidence brought to the Court, to the declaration he claimed. Thus, if the Plaintiff failed to discharge the onus on him, the weakness of the Defendant’s case will not help the Plaintiff. See the case of IMAH VS. OKOGBE (1993) 12 SCNJ PAGE 57 AT 73; KODILINYE Vs. MBANEFO ODU (1935) 2 WACA PAGE 366; UDEGBE Vs. NWOKAFOR (1963) 1 ALL NLR PAGE 417.
The Learned Counsel had argued further in his brief that the judgment of the learned trial Judge was not based on the pleadings of the parties and the evidence led in Court.
I do believe that the learned trial Judge stated the Law rightly as to how title to land can be established in the case of IDUNDUN VS. OKUMAGBA (1976) 9-10 SC PGE 227 which is to the effect that in a claim of ownership of land, the party seeking declaration of title to land must establish his title, through one of the following methods of wit:
(a) By traditional evidence;
(b) By documents of title;
(c) By acts of 
ownership numerous and positive enough to warrant the inference that the party was the true owner of the land in dispute;
(d) By acts of long possession and enjoyment;
(e) By proof of possession of connected or adjacent lands in circumstances that render it probable that whoever owned those lands was also the owner of the land in dispute.

It is my considered view in this appeal that the Lower Court guided itself well and appreciated all the issues canvassed by the parties before he concluded on the rights of the parties.
In their brief, the Respondents contended that both the pleadings and evidence agreed that the Respondent’s family allowed the Appellant’s mother Nko and Appellant’s sister Aniedi to live on the land in issue. That the evidence shows that Chief Wilson who allegedly sold the land to the Appellant

…………………….H…………………….

was buried in the land when he died and that the mother of the Appellant was not allowed to be buried on the land. That her corpse was taken to Etebi Nung Akpa Isang, Appellant’s village for burial. They attributed this to exercising acts of ownership on the land. They contended that the land was a family land and that it was not partitioned. That land was communally owned by the family. In the Respondent’s brief also it was canvassed by the Respondents that in a claim for trespass it is sufficient to show that the claimant has the right to exclusive possession of the land in dispute if he shows a better title than the Defendant. He relied on the case of ADEYEFA VS. BAMGBOYE (2014) 5 MJSC (PT. 1) 1, at Page 16 paragraphs D-G.
That in the instant case, the Respondent has shown that the Appellant was in possession of the land without their permission. He canvassed that there was proper evaluation and assessment of the evidence of the parties by the trial Court. They urged the Court to resolve these issues in favour of the Respondents.
From the record before us, the evidence adduced by the parties at the lower Court are so clear. There is not much controversy over the position adopted by the parties in their respective claims. The trial Court was the first to have contact with the evidence generated by the parties. The business of the trial Court is to engage in a thorough assessment and evaluation of evidence before the Court.
The learned trial Judge in his judgment concluded at page 342 of the Record of Appeal as follows:
The outcome of weighing the claimants evidence against the Defendants evidence is that, having regard to all I have said above, the evidence of the claimant is more credible, more conclusive heavier, unchallenged and more probable than that of the Defendant. Therefore the balance has titled in favour of the claimant. See the Supreme Court case of.
HAMZA VS. KURE (2010) 10 NWLR (PT. 1203) PAGE 637 AT 647 in which the Court relied on his celebrated rule in the case of:MOGAJI VS. ODOFIN (1978) 4 S.C. PAGE 91.
In my view, the Defendant in the circumstance has not proved his counter-claim. It is ordered that the counter-claim be and is hereby dismissed.
On the totality of the evidence before me, I hold that the claimant has been able to prove the ownership of the land by traditional evidence and by acts of ownership. His family allowed the Defendant’s mother, Nko, to live on the land and later also allowed the Defendants sister Aniedi to live on the land. 
Wilson who allegedly sold the land to the Defendant was buried on the land when he (Wilson) died. All these were acts of ownership of the land and constituted one of the ways of proving ownership of land as prescribed by the Supreme Court in the case of: IDUNDUN VS. OKUMAGBA SUPRA.
The claimant is therefore entitled to the judgment of the court.
The evidence before the trial Court indicates that the originator of the land is Chief Uko Enoudo the grandfather of the Respondents who also married many wives and was blessed with many children. He was said to have farmed on one side of the land and on the other side he gave to twin mothers to live in since it was a taboo then to have twins. The twin mother given the land to live was the great grandmother of the Appellant. The issue of the ownership of the land was therefore swift and clear. The Respondents claimed the land by way of inheritance while the Appellants claimed to have bought the land. Their story of the land being used as an evil forest or a land used to host mothers who gave

…………………….I…………………….

birth to twins was not in any sense dismantled.
In any matter of declaration of title to land, the onus of proof is always on the Plaintiff. The onus of proof is not shared with the Defendants. The Plaintiff must rely on the strength of his case and not on the weakness of the Defendants whose primary duty is to defend the claim against them. See BANKOLE VS. PELU (1991) 8 NWLR (PT.211) 523; KAZEEM VS. MOSAKU (2007) 17 NWLR (PT. 1064) 523; KAIYAOJA & ORS. VS. EGUNLA (1974) 12 SC (REPRINT) 49; MELIFONWU & ORS. VS. EGBUJI & ORS. (1982) 9 SC (REPRINT) 73; DURU VS. NWOSU (1989) 4 NWLR (PT. 113) 24; AND CHUKWUEKE VS. NWANKWO (1985) NWLR (PT. 6) 195. In the instant case, the Plaintiffs at the trial Court called in evidence in proof of their claim to the title to land. This Lower Court put Plaintiff’s evidence together vis-a-vis the evidence of the Defendants and weighed them in an imaginary scale of justice. The Lower Court by its assessment found that the proof placed out by the Plaintiffs who are the Respondents in this appeal weighed more on the scale than that of the Defendant/Appellant as the pendulum preponderated in favour of the Plaintiffs before that Court. Judgment was therefore entered for the Claimant/Respondent. This assessment to me, is adequate and good. It cannot defaulted in the instant case.
In the case of ODUNZE & 5 ORS. VS. NWOSU & 4 ORS. (2007) 5-6 SC 40 @ 70. The Supreme Court following their earlier decision in the case of IDUNDUN VS. OKUMAGBA (1976) 9-10 SC (REPRINT) 140 held that the Plaintiff it is settled must proof his case:
1. By traditional evidence;
2. By production of document of title;
3. By acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner;
4. Long possession;
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land in would be the true owner of the land.

In the instant case, the Plaintiffs/Respondents deployed traditional evidence. The Defendant/Appellant relied on act of purchase. While the Plaintiffs called evidence and proved before the Lower Court how the family land devolved. The Defendants/Appellants who claimed act of purchase did not proof that he purchased the land. He said he had a written document but no document was tendered to prove the sale agreement. The Appellant in his brief at page 13 paragraph 5.9 had canvassed as follows:
That the Respondents’ pleading in paragraph 5 of the Statement of Claim to the effect that their grandfather deforested the land in dispute is not the type of traditional evidence envisage by the Law to prove title to land. In fact, the averments of the Respondents in the continuation of paragraph 5 of the Statement of Claim to the effect that “Chief Uko Enoudo farmed on a part of this land and gave out the other part to twin mothers to live in since at that time twin mothers were not allowed to live with other people” showed that the land in dispute was no longer part of the land of Chief Uko Enoudo but that of the twin mother and the twins. This fact therefore cannot be particulars of the intervening owners through whom the Respondents can claim title to the land particularly as the Respondents are not descendants of the twin mother and or the twin who were given the land to live in. The land in dispute from the time it was given out to the twin mother as per the evidence of the Respondents, it thereafter devolved on Chief Wilson Uko as the son of the twin mother who was given the land and not any of the children of late

…………………….J…………………….

Chief Uko Enoudo from his other wives, the trial Judge therefore was wrong in declaring title of the land on the family of Uko as represented by the Respondents when the Respondent did not plead and show in evidence how his grandfather came to own and possess the land and how the land was passed to them.
The contention of the Appellant here gave the impression that he is claiming that the land was a gift to the twins mother, his own grandmother. If that is so, the question is how did he come about purchasing the land from Chief Wilson Uko the son/heir of Chief Uko Enoudo. There is definitely a clash of rational reasoning in the submission of the Appellant as captured above and this cannot sensibly with all respect, be acceptable. The argument is therefore rejected.
A careful look at the judgment of the Lower Court will show clearly a thorough assessment and evaluation of the evidence of the parties by the Lower Court. The evaluation of the evidence from the record before us was properly carried out by the Lower Court as is required. It is to my own understanding and I believe it must be appreciated that our Law as it is now gives an audacious and mandatory responsibility to the trial Court to evaluate evidence given and make appropriate findings of fact. It is only where the said evaluation and findings are perverse and occasioned a miscarriage of justice that the appellate Court can intervene to remedy the situation. See the cases of ONWUGBUFOR V. OKOYE(1996) 1 NWLR (PT. 424) 252; NNADOZIE VS. MBAGWU (2008) 3 NWLR (PT. 1074) 363; ARE VS. IPAYE (1990) 2 NWLR (PT. 132) 298; AND AYORINDE VS. SOGUNRO (2012) 11 NWLR (PT. 1312) 460. In a case such as in the instant case where the trial Court made appropriate evaluation and findings of fact, it will be a deviant appropriation of the duty of the trial Court for this Court to interfere with such an evaluation and finding. I hold that there is no basis for this Court to interfere with the evaluation done by the Lower Court in this case. Issues two and five from this therefore, must be and they are hereby resolved in favour of the Respondents.
ISSUE THREE (3)
This issue is on whether the land in dispute was still the family land of Uko Family after it was given out to the Appellants great grandmother who delivered the twins to settle in the forest which is the land in dispute with her twins children and whether the Appellant did not prove his counter claim on the preponderance of evidence.
The contention of the Appellant is that the land in issue is not a family land. That the land had been partitioned and given to Chief Wilson Uko. He made reference to the evidence of the PW2 and PW3 and the pleadings of the Respondent who asserted that the land belonged to Chief Wilson Uko. He argued that the said land was no longer a family land. In paragraph 11 of the further amended statement of defence the Appellant pleaded the following fact:
11. The Late Chief Wilson Uko Enoudo was the 1st son of his father and at the death of his father the landed property of his late father Uko were shared and “NDON IKO EKPU” or NDON IKOT EKPU” as it is rendered in Efik Language was one of the landed property of the Late Uko, the father of Wilson Uko Enoudo which was given to Wilson as his own land since he was the first born, in accordance with Eket Custom and tradition.
In his evidence before the Court the Appellant focused on the fact that the land was sold to him by Chief Wilson Uko. At page 309 of the record the Appellant thereby tersely testified on the partitioning of the land as follows:

…………………….K…………………….

“There was an agreement which I signed, Wilson signed and the writer signed. Before he sold the land Wilson was the owner of the land which was given to him as his share of his father’s land. Etteson Uko and Harry Uko were brothers to Wilson Uko. They were all of the same father. The Plaintiff in Court is a son to late Harry Uko. My sister’s children caused the Plaintiff to sue me to Court. I said so because one of the children, Godwin Udofia is now in this Court.
(Underlining mine)
The Appellant by his showing in his pleading, pleaded the custom of the Eket people which gave a first born a partitioned part of the family land. These are facts which must be duly settled by evidence. It is settled that partitioning of a family land needs to be duly proved by whoever alleges that fact. In the case of YESUFU VS. ADAMA (2010) 5 NWLR (PT. 1188) 522, the Supreme Court held that:
“Partition of a family property is one of the methods by which a family property can be determined in favour of the constituent members or family branches. Where the division is among constituent branches of the family, a new family ownership is created in as many places as the property is divided, each branch becoming the owner of the position partitioned to it. Partition must be brought about by the consensus of all members and branches of the family else it is void.
Since what amounts to partitioning of a family land is a question of fact, there must be averments in the pleadings, supported by cogent and positive evidence to buttress the partitioning. Per Adekeye, JSC.
By the averments of the Appellant and his evidence before the Lower Court, the Appellant introduced the issue of the land being partitioned and in line with the Eket custom and Tradition Chief Wilson Uko being the first child was given the partitioned land. It is a fundamental fact in our Law of evidence that he who asserts must prove his assertion to the satisfaction of the Court to enable the Court find that fact for him – see Section 132 of the Evidence Act 2011. The Appellant who was categorical about the fact that the land was not a family land because it had been partitioned before the sale must of necessity prove that assertion by concrete and positive evidence to that effect. The Appellant in his pleading was not elaborate as to the fact of the partitioning. His evidence also does not help in that respect. He tried to seek corroboration of that fact from the evidence of the 2nd and 3rd PWs but this also could not positively establish the fact that the land was partitioned and was sold to him. There is no evidence of sale. There was also no explanation about the fact that the alleged seller Chief Wilson Uko lived his life on the said land and after his death he was buried there. There is nothing before the Lower Court therefore to suggest that the character of the land in dispute had changed from being a family land to a partitioned land solely meant for Chief Wilson Uko in this case. It follows therefore that this issue is also to be resolved against the Appellant and in favour of the Respondents. I accordingly resolve the Issue No. 3 in favour of the Respondents.
ISSUE FOUR
This issue is on whether the failure of the learned trial Judge to call on the Appellant to conduct his case by himself when his counsel absented himself from the proceeding is not a breach of the Appellant’s right to fair hearing.
The learned Counsel for the Appellant in his brief pointed out that the PW1 was partly cross-examined on 29th April, 2003 by the Defendants’ counsel – Chief E. E. Eneyo. The cross-examination was not concluded in subsequent dates fixed for that purpose because the said Counsel was absent. He further contended that on the 15th March, 2004. The PW2 testified and concluded his evidence on 27th April,

…………………….L…………………….

2004 and was cross-examined partly on 6th July, 2004 by Defence Counsel who did not show up again to conclude the cross-examination. He referred to the judgment of the Lower Court at pages 334 – 335 of the Record of Appeal. His worry is that the Appellant was not shown on record to be given any chance to appreciate the proceedings on each of the days his Counsel was absent from Court proceedings. He complained also that on 15th March, 2004 when the Court foreclosed the Appellants’ Counsel from cross-examination of the PW1 and proceeded to take PW2, the Court failed to interpret the proceedings of that day to the Defendant/Appellant. That the Appellant was not given any opportunity by the Court to choose handling his case by himself in the absence of his counsel before the Court continued with the proceeding of the Court in this case. He submitted that trial Court must not only do justice but that it must ensure that justice is seen to be done. He cited the cases of ARIORI VS. ELEMO(1983) 1 SCNLR 1, UNONGO VS. AKU & ORS. (1983) 11 SC 129, 153; OBODO VS. OLOMU (1987) 3 NWLR (PT. 59) 111, 113; TORRI VS, NATIONAL PARK SERVICES OF NIG. (2011) 5-7 MJSC (PT.1) 153, 169 AND OLUFEAGBA VS. ABDUR-RAHEEM (2009) 40 NSCQR 684, 724. He then urged the Court to resolve issue 4 in favour of the Appellant.
The Respondent in his brief pointed out that whether a trial is unfair or not depends on the facts and circumstances of each case. He relied on the case of ABDULLAHI VS. NIGERIAN ARMY (2009) ALL FWLR (PT. 500) 643. He pointed out that the Court issued warnings to the Appellant and counsel over their absence and indolence. He referred the Court to pages 199 – 202; 204, 206, 222 and 227 of the Record of Appeal. He submitted that the trial Court created an atmosphere of fair hearing for the Appellant but that the Appellant and counsel refused to take benefit of it. He urged the Court to resolve this issue in favour of the Respondent. He relied on the cases of NEWSWATCH COMMUNICATIONS LTD. VS. ATTA (2006) ALL FWLR (PT. 318) 580, 601; ELIKE VS. NWAKWOALA (1984) 2 SC 307 AND EKPETO VS. WANOGHO (2005) ALL FWLR (PT. 245) 1191. He contended that a litigant who failed to take necessary steps to bring his counsel to Court despite several adjournments and warnings is himself negligent and cannot complain of unfair treatment. He relied on the case of JESUS UNION KINGDOM VS. OGISI (2010) ALL FWLR (PT. 527) 740, 744 AND MINISTRY OF F.C.T. VS. ABDULLAHI (2010) ALL FWLR (PT.507) 179.
The record of appeal before us discloses all that transpired as far as the issue of representation of the Appellant before the Lower Court was concerned. At pages 222 to 223, the record indicates that on 29th April, 2003, the parties were in Court with their respective counsel. The PW1 who had earlier testified in chief was present for cross-examination. He was cross-examined mid-way and the Learned Counsel for the Appellant, Chief Eneyo was recorded to make this application.
“Chief Eneyo: I apply for an adjournment at this State.
“Court: With consent of both Counsel the matter is adj. to 17th Jung 2003 for continuation of cross-exam of PW1.

On the adjourned date parties were present in Court except the 1st Plaintiff. The Plaintiffs’ Counsel Richard Obot, Esq. was present in Court but Chief E. E. Eneyo was absent and there was no letter written to the Court to excuse his absence. The Court on that date said:
“The case is adjourned to 8th July, 2003 when it is hoped that Chief Eneyo will be here for further cross-exam of PW1.
Then on 8th July, 2003 the Court from the record did not sit because of the NLC strike. Case was adj. to 7th August, 2003 for further cross-examination of PW1, On 7th August, 2003, parties were present with Counsel for the Plaintiffs. Record shows that Chief E. E. Eneyo for the Defendant was absent but had written for an adjournment on ground of having travelled out of the country. At page 225 of the record the Lower Court said as follows:

…………………….M…………………….

Court: The Defendant’s Counsel has asked for a number of adjournments which have delayed the progress of this case and which should be discouraged. The dates suggested by him fall within the legal vacation of the Court. The case is adjourned to 5th November, 2003 for definite confirmation or conclusion of the cross-exam of PW1. The Defendant in Court is warned to inform his Counsel of that date and to come to Court with him on that date. If the Defendant’s Counsel is again absent on that date the Court will hold that he has no more questions in cross-examination and the Court will allow the case to proceed logically therefrom.
sgd.
Andrew E. Okon
Judge
7/8/2003

On 5th November, 2003, the Court could not proceed with the case. Case was adj. to 15th December, 2003 which also failed and the matter was adjourned to 10th February , 2004. On that date the record shows the following entry:
ON TUESDAY THE 10TH DAY OF FEBRUARY, 2004
Parties present.
APPEARANCES:
Richard Obot, Esq. for the Plaintiffs.
Chief E. E. Eneyo for the Defendant is absent but has written for an adjournment on ground of attending the meeting of Judicial Service Commission.
Obot, Esq.: The Court should ignore the letter and allow us to proceed because he had been writing like that for adjournment.
Court: It is true that the Defendants counsel has been writing for adjournments. I will accept this as the last application of an adjournment by the Defendant counsel. If on the next adjourned date the learned counsel for the Defendant is absent or writes for an adjournment the Court will not accept the letter of adjournment and will conclude that the counsel has no more questions in cross-exam of PW1 and the case will proceed. The case is now adjourned to 15th March, 2004 one of the dates suggested by the Defendants counsel for definite continuation of cross-exam of PW1 or for the evidence of PW2. The Defendant is warned to come to Court on that date with his counsel unfaithfully.
sgd.
Andrew E. Okon
Judge
10/2/2004
At page 227 of the Record, the Court entry for 15th March, 2004 shows that parties were present except 2nd Plaintiff. Chief E. E. Eneyo for the Defendant was absent and no letter was sent in. The Record then shows the following entry at page 228 of the Record:
“Obot, Esq.: As the Defendant’s counsel is not here to continue with cross-exam of PW1, I am ready to call PW2 as ordered by the Court on 10th February, 2004.
Court: In the absence of the Defendants counsel to further cross-exam. PW1, the Plaintiff’s counsel is at liberty to call PW2 to testify.
Then the PW2 was called in and he testified in Chief. After his testimony the Court adj. to 2nd

…………………….N…………………….

June, 2004 for cross examination of the PW2. when the Court reconvened on 2nd June, 2004, Chief Eneyo for the Defendant now showed up and was asking the Court to allow him cross examine PW1 and for him to apply for the record of evidence of the PW2 and to cross-examine him. The Court granted the application to cross-examine the PW2 but not the PW1.
I have taken this effort and time to check the timeline on the facts of the alleged breach of right of the Appellant to fair hearing.
It must be appreciated that justice is not a one way traffic. It is usually a dual lane concept as it is justice to the Plaintiff as well as to the Defendant.
In the instant case, the Lower Court had over stretched from the record its limit in fact he had long suffering by the granting of numerous and oversubscribed request for adjournments from the counsel for the Defendant/Appellant. In some instances, the counsel for the Appellant did not bother to put up any appearance or to make any request for adjournment yet the Court would grant in the interest of justice adjournments for the Defendant/Appellant to put himself together and defend the claim against him. With the facts and circumstances of all that transpired in the instant case, the Appellant with due respects was not fair to the Learned trial Judge for complaining about any lack of fair hearing.
The counsel was indulged by the learned trial Judge with adjournments. It is obvious in this case that the Appellant was given an open opportunity to be heard. The Supreme Court in INEC vs. MUSA (2003) 3 NWLR (PT. 806) 72 held as follows:
“Fair hearing in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given equal opportunity to be heard, they cannot complaint of breach of the fair hearing principles.
There is practically nothing more left for the Lower Court to do to assure the fair hearing of the case of the Appellant that had not been done by the Lower Court. There is therefore no merit in the issue of lack of fair hearing as raised by the Appellant in this case. This Issue No. 4 is therefore resolved in favour of the Respondent.
From the foregoing therefore, it is my conclusion that this appeal is lacking in merit. The appeal is herebydismissed by me.
The Appellant shall pay a cost of N50,000 to the Respondents.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read before now the judgment served upon me by the Hon. Justice Stephen Jonah Adah, JCA, the briefs of argument of the respective parties vis-a-vis the record of appeal, I am disposed to agreeing with the reasoning reached in the judgment in question, to the effect that the instant appeal is lacking in merits. Consequently, the appeal is hereby dismissed by me upon the terms of the N50,000.00 costs awarded the Respondents against the Appellant.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege to read the draft of the lead judgment just delivered herein by my learned brother STEPHEN JONAH ADAH, JCA and I totally endorse the reasoning and conclusions therein.
I find no justifiable basis to disturb the findings of the learned trial Judge which findings duly accord with the state of evidence adduced by the parties.
There is no basis for the allusion to the statute of limitation considering the time of accrual of the cause of action.
I find no merit in this appeal and I equally dismiss it. I abide by the consequential order of cost in the lead judgment.

Appearances

N. O. Amah (Mrs.). For Appellant

AND

R. A. Manga, Esq. For Respondent

Leave a Reply

Your email address will not be published. Required fields are marked *