Chief Etim Usung & Ors V. Chief Inyang E. Nyong & Ors (2009)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
This is an appeal against the judgment of E. R. Nkop, C. J., in Suit No. R/2/1979 delivered on 21/5/06.
The appellants, hereinafter called the Iquitas, claimed damages for trespass and injunction against the respondents jointly and severally for trespassing into two contiguous portions of their land, the title to which they won against the Iduahs in a 1930 case.
At page 113 of the record, the appellants claimed at paragraph 11 of their further amended statement of claim as follows:
“The plaintiffs therefore claim against defendants jointly and severally for themselves and on behalf of Iquita village as per writ of summons:
(a) N500,000.00 for trespass in that in recent years and particularly, after the civil war, the defendants, by themselves and/or agents/assigns and privies, broke and entered two contiguous portions of Iquita land verged PINK and YELLOW on the plaintiffs’ Plan filed herewith call UKO URUE-MON and UKO-EYUKIM which are in possession of the plaintiffs; and
(b) Perpetual injunction to restrain the defendants, by themselves, their workers, servants, privies and assigns from further acts of trespass on the said land.”
In furtherance of the claims, the appellants called three witnesses including the first appellant. The respondents called seven witnesses. PW1 was recalled by the appellant at pages 229 – 236 of the record. At the close of hearing, the counsel for the parties filed written addresses. The trial Judge gave judgment against the appellants and in favour of the respondents. Dissatisfied with the judgment of the trial court, the appellants appealed to this court on 6 grounds. The appellants in their amended brief of argument dated 16/1/09 and filed on the 27/1/09 formulated 6 issues for determination and they are as follows:
“1. Whether the Iquitas can bring a successful action for trespass against the Eyo Abasi people without a prior judgment for declaration of title?
2. Whether the court below was right in holding that Iquitas’ Exhibit “A” was copied from Exhibit “F” and that Exhibit “M” of the Eyo Abasi people was more realistic and natural?
3. Whether Exhibit “A” is a true representation of the land in dispute?
4. Whether the order in Suit No. R.14/1930 that the services of a Surveyor be enlisted to produce PLAN herein Exhibit “F” depicting the boundaries in Exhibit “E”, was complied with?
5. Whether the judgment in Suit No. R. 14/1930 (Exhibit “E”) between the Iquitas and the Iduas was binding on the Iduas thus creating an estoppel against relitigating the same issues all over again?
6. Whether the court below properly evaluated the totality of the credible evidence both oral and documentary adduced before it in arriving at its judgment?
The 1st – 4th respondents, hereinafter referred to as the Iduas, in their amended brief dated 6/2/09 and filed the same day adopted Issue Nos. 2 – 6 formulated by the appellants and in addition formulated their own Issue NO.1 which is as follows:
“1. Whether on the pleading the appellants were entitled to succeed against the respondents?” .
The 5th – 11th respondents, hereinafter referred to as the Eyo Abasi people, in their amended brief dated 23/1/09 and filed on the 26/1/09 distilled two issues for determination and they are as follows:
“1. Whether the learned trial Chief Judge was right in holding that there was no evidence of demarcation as ordered in the judgment in Suit No. R.14/1930 which was tendered as Exhibit “E” on page 134 at line 2 of the record of appeal.
2. Whether from the pleadings and evidence the appellants had made out a case of trespass against the people of Eyo Abasi (the second set of Respondents).”
In his argument on Issue NO.1, learned counsel for the appellants, Mr. I. M. Akpan, submitted that the two contiguous pieces of land, the subject of the trespass belong to the Iquitas and they have had possession for 43 years before the respondents interfered. The pieces of land are delineated and verged Yellow and Pink and are known as and called UKO URUE-MON and UKO EYUKIM respectively, in Plan No. T. J. Efe 55 (L. D.) prepared by Theophilus John, a Licensed Surveyor. Counsel submitted that the traditional boundaries of the Iquitas and the Eyo Abasi people are shown by several live trees, namely, Ukana, Aboti and Uyo trees, etc. stricken by age, some of which are still there as can be seen in Exhibit “A”, at page 112 of the record.
Counsel contended that the Eyo Abasi people crossed into the disputed land at point to the North-East and East. He relied on Udo vs. Chimbo (1998) 63 LRCN 4941 at 4946; Olagbemiro vs. Ajagungbade (1990) 3 NWLR (Pt. 136) 37 and Adebanjo vs. Brown (1990) 3 NWLR (Pt. 141) 666 and submitted that trespass is based on possession and that a person suing for trespass must have exclusive possession, present possessory title or a better title or right to possession.
Also, that the traditional boundaries of the Iquitas and Eyo Abasi people are shown by several live trees in Exhibit “A”. He argued that Eyo Abasi people knew of the long legal battles which took place between the Iquitas and Iduas but they stood by and allowed the Iduas to fight their legal battle for them and lost, therefore, the doctrine of standing by applies against them. He referred to Chinwe vs. Masi (1989) 1 NWLR (Pt. 89) 254 at 258 and Omoloye vs. A-G, Oyo State (1987) 4 NWLR (Pt. 64) 267 at 270, where it was held that if a necessary party knows of the pendency of a suit and keeps quiet, he will be bound by the result.
Counsel referred to Exhibit “E”, the judgment in Suit No. R. 14/1930, particularly at page 4, paragraph 6 and the fact that Iquita houses and farms still littered all over the said land. It is the same land that the Eyo Abasi people have trespassed into and which the trial court erroneously held that they have superior evidence of possession. He submitted further that a trespasser does not by the act of trespass acquire possession in law from the person against whom he is in trespass. In law what the Eyo Abasi have is adverse possession. He relied on Jumku vs. Sabi (2005) 3 NWLR (Pt. 913) 544.
Mr. I. M. Akpan referred to Exhibits B, E, G, H, J, K, M and Q and submitted that the Eyo Abasi people know the true boundaries of their land and there is no such thing as concurrent possession of land by two persons.
See Balogun vs. Labiran (1988) 1 NWLR (Pt. 80) 66 at 69. He contended that legal possession by one party whether dejure or defacto, physical or constructive, excludes the other and renders him liable in damages or trespass. He relied on Udo vs. Chimbo (1998) 63 LRCN 4941 at 4948; Amakor vs. Obiefuna (1974) 3 SC 67; Udeze vs. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 162 and George-Will vs. George-Will (1924) 5 NLR 76.
Counsel concluded that the Eyo Abasi people are trespassers because the Iquitas have several buildings and farmlands on the disputed land dating very many years back. He argued that the possession of Eyo Abasi is a recent and adverse possession and cannot therefore put on any superior possession because no concurrent possession of any portion of land by two persons claiming adversely to each other is allowed in our law. See Oyebamiji vs. Fabiyi (2003) 12 NWLR (Pt. 834) 271 at 274.
Learned counsel argued Issues Nos. 2 and 3 together and submitted that Exhibit “A” which was produced by a Licensed Surveyor, Mr. T. John is a true representation of the land in dispute and that it tallies with Exhibit “E”, therefore, Exhibit “M” tendered by the Eyo Abasi people cannot be the realistic and natural. Counsel submitted that a plan is not an absolute necessity in every land case, it can be dispensed with where the identity of land in dispute is known by the parties. He relied on Garba vs. Akaoha (1966) NMLR 62.
Also that the features in a plan form part of the evidence in a trial. It is not a ritual that all the features in a plan should be proved by oral evidence. See Omorogie vs. Enwanya (1985) 2 NWLR (Pt. 65) 41 at 60.
On Issue NO.4, Mr. I. M. Akpan submitted that the orders in the judgment in Suit No. R.14/1930 were complied with. He pointed out that DW3 at page 173 of the record gave evidence that he accompanied his father to see when the surveyor and the D. O. Eket, went to comply with the order and that a policeman accompanied them that piece of evidence was not faulted.
On Issue NO.5, counsel contended that the Iquitas relied on Exhibit “E”, which is the judgment in Suit No. R.14/1930 and opined that the judgment is binding on the Iduas and that they are estopped from raising the same issues all over again. Relying on Dzungwe VS. Gbise & Ors. (1985) 2 NWLR (Pt. 8) 528 at 537; Shitta-Bey vs. L. E. D. B. (1962) 1 all NLR 575 and Fadiora vs. Gbadebo (1978) 3 SC 219, counsel submitted that the four conditions for the doctrine of estoppel to apply in the instant case on appeal are present and the Iduas are thereby estopped from raising the same issues or relitigating the same matter all over again. He also pointed out that the Iquitas have had and still have several houses and farmland on the disputed land from time immemorial and they have not been ousted ever since but the court below totally failed to take these into consideration. He referred to Ukaegbu vs. Ngozi (1991) 6 NWLR (Pt. 196) 127 at 130 -131 and Baungun vs. Akingbaje (1999) 19 LRCN 1011 at 1015 and submitted that estoppel can now be used as a sword. Counsel concluded on this issue that the people of Iquita, having been given declaration of title in their favour in 1930, and the Iduas did not appeal against it. Therefore, they have better title or right to possession as against the Iduas and their claim for trespass ought to succeed.
On Issue NO.6, counsel submitted that the trial court failed to properly evaluate the totality of the credible evidence led at the trial thus leading to miscarriage of justice on the part of the Iquita people. He then urged the court to allow the appeal and set aside the judgment of the trial court.
Learned counsel for the Iduas, Etubom Archibong, in their own Issue No. 1, submitted that the Iquitas, as plaintiffs, claimed damages for trespass and injunction but the Iduas, as defendants, denied the claim and claimed ownership of the land in dispute, therefore, title is put in issue. Learned counsel contended that for the Iquitas to succeed they are bound to plead and prove better title to the land. He relied on Fasikun vs. Olaronke (1999) 1 SCNJ 105; Odukwe vs. Ogunbiyi (1998) 6 SCNJ 102; Lawson vs. Ajibulu (1997) 6 SCNJ 1; Adebayo vs. Ighodaro (1996) 6 SCNJ 23 and Jiaza vs. Bamigboye (1999) 5 SCNJ 167. He contended that there are five ways of establishing title and none of them was pleaded by the Iquitas. They however pleaded in paragraph 6 of their further amended statement of claim, at page 111 of the record, that the pieces of land are theirs from time immemorial without more. Counsel pointed out that the Iquitas’ pleading should have averred:
(a) facts relating to the founding of the lands in dispute;
(b) the founders of the land; and
(c) on whom the lands devolved since founding.
He referred to Osafile vs. Odi (1994) 2 SCNJ 1; Lawal vs. Olufowobi (1996) 12 SCNJ 376 and Nneji vs. Chukwu (1996) 12 SCNJ 388 and submitted that it is only after a party’s root of title is first established that consequential acts flowing therefrom can then properly qualify as acts of ownership. He also pointed out that Iquas (1st – 4th respondents) did not fight any case for or concerning the Eyo Abasi people, therefore, they cannot be accused of standing by. He also argued that reference to “quic quid plantatur solo solo cedit is hardly necessary not having been sought for, pleaded or testified on.
On Issues Nos. 2 and 3, learned counsel submitted that Exhibit “A” is certainly not a true representation of the land in dispute being hearsay and it does not show Uku Urue-Mon as the land in dispute. Also that Exhibit “F” prepared in 1920 could not have been the plan so contemplated by the judgment in R.14/1930. The plan so contemplated was to been featured within one month of the said judgment.
On Issue NO.4, learned counsel submitted that Exhibit “F” tendered as Exhibit “A” in Suit No. R.14/1930 and so admitted cannot be the document envisaged by the so-called judgment, the facts of which are not pleaded.
Further as the appellants had not pleaded the post judgment plan it cannot be said they complied with the decision in Suit No. R.14/1930.
On Issue NO.5, counsel contended that estoppel should be particularly pleaded, which the appellant did not do in the instant case on appeal. Exhibit “E” is an inchoate judgment without the plan to accompany it. Learned counsel pointed out that Exhibit “E” was decided by a District Officer in 1930, whereas in 1928, Justice Webber had decided per Exhibit “Oil that the appellants were not entitled to a declaration of ownership of the same land as between the Iquitas and Iduas, therefore, Exhibit “E” was decided without jurisdiction. He relied on Okafor vs. A-G, Anambra State (1992) 8 LRCN 407 and Idesoh vs. Ordia (1997) 2 SCNJ 125 and contended that the non-production of the ordered plan in Exhibit “E” is inconclusive of the matter. It is not a final judgment and therefore cannot found estoppel.
On Issue NO.6, counsel submitted that the learned trial Chief Judge critically went through the pleadings and the evidence adduced and gave a sound judgment on proper evaluation of the case before him. He then urged the court to dismiss the appeal.
Learned counsel for the Eyo Abasi people, Mr. R. N. Akpan, submitted that the order for demarcation made in Exhibit “E” was never complied with so the judgment in Exhibit “E” is inchoate. No survey plan used in the demarcation was tendered by the appellants. Counsel contended that Exhibit “F”, the 1920 survey plan tendered by the appellants at the trial court could not have been the survey plan ordered to be used in demarcating the land in dispute in the Suit No. R.14/1930. Exhibit “F” was labeled “PLAN OF IDUA LAND”. He concluded that the learned trial Judge was right when he held that he did not believe that the order in Exhibit .”E” was complied with. Counsel pointed out also, that the appellants at the court below tendered Exhibit “A” in which point B, A and C were indicated. Since the appellants did not tender the survey plan of demarcation, it follows that the appellants told their surveyor to insert points B, A and C in Exhibit “A”, and that is hear-say. He relied on Akpan vs. Otong (1996) 214 LRCN 2166 and the finding of the trial Chief Judge at page 300, lines 7 – 14 of the record on this point.
He was also of the view that if the order in Exhibit “E” had been complied with the rights of the parties would have been determined and would have been a final order. He relied on Nwabueze .vs. NIPOST (2006) 8 NWLR (Pt.983) 480 and Olatunde vs. O. A. U. (1998) 58 LRCN 3363.
On Issue NO.2, Mr. R. N. Akpan contended that Exhibit “E” cannot avail the appellants of the title to the two pieces of land in their Exhibit “A” because the conditions precedent to making Exhibit “E” binding on the parties were not complied with. Moreover, Eyo Abasi people were not parties to Exhibit “E”.
Counsel contended that by their pleadings, the appellants put their title in issue claiming damages and injunction, therefore, for the appellants to succeed, they must prove their title in one of the ways or a combination of some of the 5 ways of proving title which the appellants failed to do. He relied on Amakor vs. Obiefuna (1974) 1 NMLR 331; Onah vs. Onyia (1989) 1 NWLR (Pt. 99) 514 on this point.
Counsel also contended that since the appellants were disputing boundaries with Eyo Abasi people, they must prove the boundaries and other features but they did not. He submitted that the appellants did not show that they were in exclusive possession of the two pieces of land verged Pink and Yellow in Exhibit “A”, which is Pink on Exhibit “M”. Exhibit “M” shows the presence of the Eyo Abasi people on those pieces of land and they gave land to Roman Catholic Mission, Post Office and to Chief Nyong Anwana Esin to build a Technical School, see page 208 at lines 1 to 8. He submitted that trespass is actionable at the instance of the person in possession and since the appellants were not in possession nor were they able to prove title they must fail. Relying on Owhonda vs. Ekpechi (2003) 113 LRCN 2525, he submitted that the appellants cannot successfully maintain an action against the Eyo Abasi people.
On the issue of estoppel, counsel submitted that it cannot arise against the Eyo Abasi people because they were not parties to the suit in Exhibit “E”.
Lastly, counsel submitted that the trial court properly evaluated the evidence adduced at the trial. He then urged the court to dismiss the appeal.
I have carefully considered the issues for determination formulated by the parties in this appeal. I observed that Issue No.1, formulated by the appellants does not arise from any of the grounds of appeal filed by the appellants. Where an issue for determination does not arise from any of the grounds of appeal, it must be struck out. An issue must be supported by or derived from at least a ground of appeal, otherwise it will be incompetent or disregarded in the determination of the appeal. It is not permissible to canvass and tender argument on issues having no bearing with any of the grounds of appeal. Any issue raised or argument adduced on an issue not arising from a ground of appeal is incompetent and liable to be struck out.
See Sekoni vs. UTC (Nig.) Plc. (2006) 8 NWLR (Pt. 982) 283 at 297; African Petroleum Ltd. vs. Owodumi (1991) 8 NWLR (Pt. 210) 391 and Enoli vs. Oraekwe (2005) 1 NWLR (Pt. 961) 342. Issue No. 1 is incompetent and it is hereby struck out. In the circumstances, I have chosen the issues formulated by the Iduas in the determination of this appeal because they are more derivable from the grounds of appeal subscribed in the notice of appeal.
In respect of Issue NO.1. the issue here is whether on the pleading the Appellants were entitled to succeed against the respondents. It is law that a claim for trespass to land is rooted in exclusive possession. All that the Iquitas need to establish to succeed in such a claim is that they have exclusive possession or the right to such possession of the land in dispute. However, once the Iduas asserted ownership of such land in dispute, title thereto is automatically put in issue. In such a case for the Iquitas to succeed they must establish a better title than that of the Iduas. See Fasikun vs. Olaronke (supra); Jiaza vs. Bamgbose (supra); Odukwe vs. Ogunbiyi (supra) and Lawson vs. Ajibulu (supra). Onwugbufor. vs. Okoye (1996) 34 LRCN and Tenalo vs. Piaro (1976) 12 SC 31.
There are five ways of establishing title and they are:
(1) By traditional evidence;
(2) By production of documents of title which are duly authenticated;
(3) By acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion of it;
(4) By acts of long possession and enjoyment of the land; and.
(5) By proof of possession, connected or adjacent land and prove a better title to the land.
See Idundu vs. Okumagba (1976) 9 – 10 SC 227 and Amakor vs. Obiefuna (supra).
In Adeniran vs. Ashabi (2004) 2 NWLR (Pt. 857) 375 at 409, this court held that:
“In a claim for declaration of title to land, it is the duty of the claimant to prove his claim by or on the strength of his own evidence and not on the weakness of the defence.”
See Uchendu vs. Ogboli (1999) 5 NWLR (Pt. 603) 337 and Kodilinye vs. Odu (1935) 2 WACA 336.
Furthermore, it is the duty of the appellants in a claim for declaration of title to establish with certainty and accuracy the identity of the land in dispute.
In the instant case on appeal, the Iquitas did not plead in their amended statement of claim any facts consistent or in line with the 5 ways of establishing title and they did not lead any evidence to that effect. All that the Iquitas pleaded was in paragraph 9 of their statement of claim at page 111 of the record is that pieces of land are theirs from time immemorial, without more.
Ordinarily, the Iquitas should aver:
(a) facts relating to the founding of the lands-in-dispute;
(b) the founders of the land;
(c) on whom the lands devolved since founding.
Apparently, the Iquitas did not advert their minds to the above requirements in their pleading. See Osafile vs. Odi (supra); Lawal vs. Olufowobi (supra) and Nneji vs. Chukwu (supra). It is important to note that it is only after a party’s root of title is first established that consequential acts flowing there from can then properly qualify as acts of ownership.
Consequently, where the title pleaded is not proved, it will be totally unnecessary to consider acts of possession or ownership because such acts are no longer acts of possession or ownership but acts of trespass. In the instant case on appeal, the Iquitas relied on the judgment of the District Officer made in R.14/1930, Exhibit “E” as their root of title.
Exhibit “E” was decided by District Officer in 1930. Before then, Hon. Justice Webber had decided the same issue between the Iquitas and Iduas in a 1928 suit, Exhibit “D”. The trial Judge held that the Iquitas were not entitled to a declaration of ownership of the same land in dispute. See page 133, lines 17 – 22 and 25 – 28. From the record there is no evidence that Iquitas appealed against that decision. So the judgment is still valid and subsisting. The District Officer’s court is inferior to the Supreme Court (as it then was) or the High Court, presided over by Justice Webber. It is therefore strange that a District Officer can assume jurisdiction and rehear a case heard and determined by a court of competent jurisdiction namely, the Supreme Court presided over by Justice Webber.
Courts in Nigeria religiously follow the doctrine of precedent on the enforcement of judicial process. Under the doctrine decisions of superior courts are binding as the inferior courts. The decisions of a higher court are binding on a lower court. See Ogboru vs. Ibori (2006) 17 NWLR (Pt. 1009) 542 at 603 – 604 and Onyemaizu vs. Ojiako (2000) 6 NWLR (Pt. 659) 25; Egbe vs. Belgore (2004) 3 NWLR (Pt. 875) 336 and Dalhatu vs. Turaki (2003) 15 NWLR (Pt. 843) 310. It follows from the above that Exhibit “E” was decided by the District Officer without jurisdiction. See section 53 of the Evidence Act. In the circumstances, I see no merit in Issue No. 1 and I resolve it against the appellants.
Issues Nos. 2, 3 and 4 will be considered together because they are related and they overlap or are intertwined. The issue here is whether the trial court was right in holding that Exhibit “A” was copied from Exhibit “F” and that Exhibit “M” of the Eyo Abasi people was more realistic and natural and whether Exhibit “A” is a true representation of the land in dispute. In order to appreciate the issue involved, it is important and necessary to consider the judgment in Suit No. R.14/1930 and the order made thereat. The said judgment was tendered as Exhibit “E” at page 134, line 7 of the record of appeal. The relevant portion of the judgment is reproduced herein below:
“(d) The Eastern boundary between the plaintiffs and the defendants will be the old Eyo Abasi Road from point B to A (as the Ukana Tree) and the first part of the Northern boundary will be from the point A-C.
These two sections to be demarcated within one month by a Licensed Surveyor, cement pillars for the demarcation to be supplied by the D. O. Eket on repayment, the cost of the demarcation to be shared by both parties.
(e) The plaintiffs’ costs are assessed at forty guineas.
(f) Two further copies of plan to be procured by the plaintiffs and cost shared by the parties. The court will retain the plan put in evidence. Of the two new copies one will be kept by plaintiffs.”
Pursuant to the order for demarcation made in Exhibit “E”, the Iquitas were supposed to have produced a survey plan for the demarcation of the boundaries. All through the trial before the court below, the Iquitas did not tender any survey plan used in demarcating the boundaries as ordered in Exhibit “E”. That meant that there was no demarcation of the boundaries as ordered in the judgment in Exhibit “E”. Exhibit “F”, is the plan of the Iduas tendered in an earlier case and it was prepared in 1920. See page 134, line 20 and page 139, lines 9 – 13 of the record. Exhibit “F” was indeed labeled “PLAN OF IDUA LAND at page 147, line 16 of the record. It is therefore clear that Exhibit “F”, the 1920 Survey Plan tendered and relied upon by the Iquitas could not have been the Survey Plan ordered to be used in the demarcation in the 1930 judgment, Exhibit “E”. If the order made in Exhibit “E” had been complied with the rights of the parties in Exhibit “E” would have been determined and it would have been a final order.
In respect of Exhibit “A”, I will refer to page 165, lines 17 – 21 of the record, where PW2 under cross-examination stated as follows:
“Question: Look at Exhibit “A”. Those your traditional boundaries arise from the suit R.14/1930 and Exhibit “F”.
Answer: The Survey Plan, Exhibit “A” was made in 1975. I agree. They do.”
A cursory glance at Exhibit “A” reveal that it does not show Uku Uruemong as the land in dispute. At page 300 of the record the trial Chief Judge relied on the submission of Mr. Akpan where he said:
“Exhibit A was prepared by a Licensed Surveyor on the instruction of the plaintiff who told the surveyor what and what to insert of Exhibit A. Exhibit A is hearsay of the plaintiffs.”
The court then held as follows:
“This is so because if there was nothing on the ground where did they got (sic) the points B, A and C. From except that the plaintiffs gave them Exhibit “F” to copy.
I hold that Exhibit “A” tendered in this case is not a true representation of the land in dispute as far as the boundary between Iquitas and Iduas are concerned.
Since there is no clearly defined boundary, there can be no question of trespass by the Iduas.”
I agree with the findings of the learned trial Chief Judge. It is obvious that there was no plan made by the Iquitas as ordered in the Suit R.14/1930 judgment, Exhibit “E”, otherwise the appellants would have tendered same. If there was no demarcation plan made in 1930, how did they get point B, A and C in Exhibit “A”? There is evidence that the Survey Plan, Exhibit “F” was made in 1920 by the Iduas hence it is labeled “PLAN OF IDUA LAND”.
Therefore, Exhibit “F” prepared in 1920 could not have been the plan contemplated by the judgment in Suit No. R.14/1930, because the plan ordered in Suit R.14/1930 should have been drawn within one month of the said judgment. Apparently, the order in Exhibit “E” decided in 1930 was not complied with. Indeed the learned trial Chief Judge rightly found at page 299 at lines 30 to 31 that:
“I do not believe that the order in Exhibit “E” decided in 1930 was complied with.”
From the available evidence in the record, the finding of the learned Chief Judge is impeccable. In the circumstances Exhibit “A” which was drawn in 1975, is not a true representation of the land in dispute as far as the boundary between Iquita and Idua is concerned. Since there is no clearly defined boundary, there can be no question of trespass by the Iduas. In respect of Exhibit “M”, the issue here is whether Exhibit “M” of the Eyo Abasi people is more realistic and natural. At page 301, lines 13 – 26, the trial Chief Judge held as follows:
“Exhibit “M” tendered by the 5th to 11th defendants appears more realistic and natural. Evidence of possession of the defendants in this land is very visible. Their houses are all over the place and so also are the houses of their tenants. This was not challenged by the plaintiffs under cross-examination.
Since title to the disputed has not been declared in favour of any of the parties in this case, it is only a party that vives (sic) superior evidence of possession, that can maintain an action in trespass. The scale tends to tell (sic) in favour of the people of Eyo Abasi in this case, it will be inconsistent with the realities on the ground to say that Eyo Abasi people have trespassed into the land of the Iquitas. I cannot say this.”
I could not agree more with the learned trial Chief Judge. I have myself examined Exhibit “M” carefully. It is very comprehensive and detailed. It shows the buildings of the Eyo Abasi people and the houses of their tenants.
The Eyo Abasi people gave land to Roman Catholic Mission, Post Office and to Chief Nyong Anwana Esin to build a Technical School and Ministry of Education. This is very clear from the evidence of DW5, Chief Bassey Edohonsi at page 208, lines 1 to 8 of the record. He stated:
“I know where the Roman Catholic Mission is on Exhibit “M”. I know where the Ministry of Education is.
I know where the Post Office is. It is the people of Eyo Abasi who owns the land given to Roman Catholic, Ministry of Education and the Post Office. Chief Nyong Anwana Esin did not build the technical school on the land in dispute. It is Eyo Abasi people that own the land on which the technical school stands. I see Exhibit “E”. Eyo Abasi was not a party to Exhibit “E” … ”
DW5, despite a grueling cross-examination by the Iquitas’ counsel, was not shaken. The Iquitas themselves did not challenge the evidence of DW5 on this issue. His evidence is therefore credible and admissible. The Iquitas in their brief at page 13, paragraph 5.16 stated that there is abundant evidence that they took their surveyor to the land, showed him round and indicated the features on the land including all those indicated as the causes of action. That may be so, the only problem is, where is the Survey Plan? The Iquitas tend to rely on Exhibit “F” which was drawn in 1920 and it is a plan for Idua land not Iquitas. Exhibit “F” preceded Suit No. R.14/1930 and Exhibit “E”. The appellants also tried to rely on Exhibit “A”. But Exhibit “A” was drawn in 1975, that is 45 years after Exhibit “E” was delivered. It is for the above reason that I agree with the trial Chief Judge that Exhibit “M” is more realistic and natural.
Learned counsel for the appellants relied on Abiodun vs. Fasanya (1974) 11 SC 61, where it was held that failure to file a plan in a case was not fatal to the claim if both parties gave sufficient particulars of the land in dispute. See also Garba VS. Akaoha (supra) and Omorogie vs. Enwanya (supra). The irony of this submission is that it was the Iquitas that tendered Exhibits “A” and “F” which they claim are true representation of the land in dispute. They cannot approbate and reprobate.
The evidence of PWs 1, 2 and 3 did not give sufficient particulars of the land in dispute. Indeed as the parties in the instant case on appeal were disputing the boundaries of the land in dispute, a survey plan is absolutely necessary for the determination of the case. In a claim for trespass and injunction, there is a compelling need for the Iquitas to clearly and distinctly identify the land. The Iquitas must back up their claim by credible evidence as to the identity, extent and location of the land claimed. The land to which a claim for declaration relates must be identified with certainty. Failure to establish the identity of the disputed land is fatal to the Iquitas’ case in a claim for declaration of title. See Osiegbu vs. Okon (2005) 16 NWLR (Pt. 950) 58 at 79 and Owhonda vs. Ekpechi (2003) 17 NWLR (Pt. 849) 326. The Iquitas contended that Exhibits “A” and “F” were tendered without any objection.
Exhibits “A” and “F” are survey plan. It is trite law that the admission in Evidence of a survey plan without objection will not entitle a court to ascribe to the survey plan a probative value which the survey plan does not otherwise possess when the survey plan itself is bereft of features which can give the boundaries in it the character of certainty. See Tukuru vs. Sabi (2005) 3 NWLR (Pt. 913) 544 at 560 – 561.
It should be noted that the Iquitas have not been able to establish exclusive possession or ownership. See Udo vs. Chimbo (supra) at 4946 and Adesanyo vs. Brown (supra). In the circumstances, it will be incorrect as contended by Mr. I. M. Akpan for the Iquitas that the possession of Eyo Abasi is a recent and adverse possession. By Exhibit “M”, it is obvious that the Eyo Abasi are in possession of the land in dispute. In Exhibit “M”, the Eyo Abasi showed the portion of the land occupied by the Iquitas and the Iduas.
Exhibit “M” show the buildings of the Eyo Abasi people and those they gave land to like the Roman Catholic Church, Ministry of Education, Post Office and others. These are clearly shown in Exhibit “M”. If that is the case it means that Eyo Abasi people have been exercising acts of ownership of the land in dispute. On the other hand, all the Iquitas pleaded is that they have been in possession of the land from time immemorial and that their root of title is derived from Exhibit “E”.
It is important to note that for the Iquitas to succeed in a claim for declaration of title, they must plead and prove a better title to the land in dispute. See Fasikun vs. Olaronke (supra) and Odukwe vs. Ogunbiyi (supra). This they have not done in the instant case on appeal.
On the issue of the Eyo Abasi people “standing by”, there is no evidence to support that allegation. None of the witnesses for the Iquitas testified to the effect that the Eyo Abasi people knew or were aware of any litigation between Iquitas and Iduas. There is no evidence that the Iduas fought any legal battles with the Iquitas on behalf of the Eyo Abasi. There is no evidence that the Eyo Abasi people are related to the Iduas or Iquitas. In Exhibit “E”, the Iquitas did not join the Eyo Abasi people as parties. That being the case, the Eyo Abasi cannot be accused of standing by. I have read the cases of Chinwe vs. Masi (supra) and Omoloye vs. A-G, Oyo State (supra) and in my considered view they are not applicable to the facts of this case because there is no evidence that Eyo Abasi people knew of the pendency of any suit and kept quiet. From Exhibit “N”, it is clear that the Eyo Abasi people had their own battles with the Iduas and not the Iquitas. The submissions of Mr. I. M. Akpan on this issue is misconceived.
Furthermore, Exhibit “E” is an inchoate judgment without the plan ordered to be drawn by a surveyor in order to ascertain the boundaries of the land in dispute. In my respectful view without ascertaining the boundaries of the land in dispute, how can there be a valid judgment. Without ascertaining the boundaries of the land in dispute how can there be trespass. The appellants relied on Exhibit “F”, a plan produced by the Iduas in 1920 and duly headed “Plan of Idua Land”. Surely, Exhibit “F” has no relevance to or nexus with Exhibit “E” decided in 1930. Appellants also relied on Exhibit “A”, a plan drawn in 1975, that is to say 45 years after the judgment in Exhibit “E” was purportedly delivered. So the question is where is the plan ordered to be drawn by the District Officer in Exhibit “E”? Why are the Iquitas unable to produce the plan? Have the Iquitas anything to hide? In the circumstances, I find no merit in Issue Nos. 2, 3 and 4 and I resolve same in favour of the respondents, the Iquitas and Eyo Abasi people.
I now come to Issue No. 5 which relates to the issue of estoppel. First and foremost a careful perusal of the pleadings of the Iquitas reveal that though they pleaded many judgments, they did not raise or plead estoppel in the amended statement of claim at pages 110 – 113 of the record. Estoppel should be particularly pleaded, this was not done in the instant case on appeal. A plea of estoppel must be clearly and specifically pleaded or else it must be so apparent that the court has a duty to consider it. See Ogboru vs. Ibori (supra) at page 416 and Sosan vs. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241. Exhibit “E” is an inchoate judgment without the plan to accompany it as ordered by the District Officer in Suit R.14/1930. The facts of the said plan have not been pleaded by the Iquitas.
Exhibit “E” is said to be commenced or initiated by a “Commission” but the “Commission” was not produced before the trial court. Exhibit “E” is not a judgment of a court of competent jurisdiction and it is not a final judgment because it is still dependent on the happening of an event, mainly the survey plan ordered by the District Officer. Therefore, Exhibit “E” cannot be the foundation or basis of estoppel. So Exhibit “E” cannot create estoppel preventing the Iduas from claiming ownership.
In respect of the Eyo Abasi people, Exhibit “E” cannot be used to raise the issue of estoppel against them. To begin with, the Eyo Abasi people were not parties in Suit R.14/1930. It is settled that issues are determined amongst parties to the action before the court. The decision of a court therefore is not binding on a party who was not a party to a suit. See Obiora vs. C. O. P. (1990) 7 NWLR (Pt. 1610 222 AT 232. The Eyo Abasi people not being parties to Suit No. R.14/1930, the decision cannot bind them.
Before a plea of estoppel can succeed, certain essential conditions must exist in relation to the previous suit and the current one. These are:
(1) The parties must be the same.
(2) The subject-matter must also be the same. In other words, there must be a lis inter parties in which the point relied upon for establishing the estoppel was not merely incidental or collaterally discussed and litigated but was fundamental to the conclusion reached by the court.
(3) There must be a decision.
(4) The decision must be final.
(5) The decision must be given by a court of competent jurisdiction.
See Nteyobo vs. Udo (1991) 5 NWLR (Pt. 189) 100 and Yoye vs. Olubode (1974) 10 SC 209 at 212 – 3. Exhibit “E” itself is not a proper judgment strictly so called, in the sense that it was not a final judgment. There is a need for a judgment or decision of a court to be final in its conclusion. No judgment or other proceeding can be final which does not at once affect the status of the parties for whichever side the decision may be given. A final judgment is one which puts an end to an action by declaring the plaintiff is or is not entitled to the remedy he sued for so that nothing remains to be done but to execute the judgment. See Ogboru vs. Ibori (2005) 13 NWLR (Pt. 942) 319 at 406. In the circumstances, there is no merit in Issue NO.5 and I resolve it against the appellants.
On Issue NO.6, the issue here is whether the learned Chief Judge properly evaluated the evidence before him. In my view, the learned trial Chief Judge properly evaluated the totality of the credible evidence adduced in the case before him and he delivered a very sound judgment. Learned counsel for the Iquitas referred to Suits Nos. 386/38, 387/38, 388/38 and 389/38, which is encapsulated in Exhibit “N” between the Iduas and Eyo Abasi people before the Oran Native Court. I have carefully gone through the cases but I cannot see how they are relevant to the instant case on appeal. The Iquitas were not party to the suit and there was no declaration made in their favour or against them in the suits. I have also examined Exhibits B, C, G, J, K, K1, P and R tendered in the instant case on appeal. Exhibit “B” is the judgment of Webber, Presiding Justice in 1917. Exhibit “C” is another judgment of Webber, P. J. in 1919. Exhibit “G” is a writ of summons dated 10/1/70; Exhibit “H” is a motion on notice. Exhibit “J” is a Court Order, directing the plaintiffs in the case to file and serve statement of claim. Exhibit “K” dealt with the issue of costs by Alexander C. J. Exhibit “K1” dealt with the order of Alexander C. J. on the issue of taxation. Exhibit “P” is a judgment delivered in 1912 by Winkfield, J., in 1912. Exhibit “R” is a writ of summons. A careful perusal of the exhibits reveal that they have little or no relevance to the instant case on appeal.
Exhibit “D” is a survey plan drawn in 1912, it is not relevant to the issue on hand in this appeal. The main foundations and pillars for the Iquitas’ case are Exhibits “A”, “E” and “F”, which I have dealt with sufficiently in this appeal and made my findings known.
The Iquitas made heavy weather on Exhibit “E” which they alleged bound the Iduas. I have pointed out the defects in Exhibit “E” earlier in this judgment. There is no need to repeat myself on the issue. The Iquitas also tendered Exhibits G, H, J and K which relate to the Suit No. C/3/70, instituted by the Eyo Abasi people. That suit was struck out for want of diligent prosecution. The Eyo Abasi people did not apply to relist the suit. However, the order, striking out Suit No. C/3/70 did not award title to the Iquitas.
It will be recalled that the Iquitas called 3 witnesses who testified and relied heavily on Exhibits “A”, “E” and “F”. The learned trial Chief Judge considered Exhibits A, E and F and concluded that Exhibit “M” was more realistic and natural. I cannot see what the trial Chief Judge omitted to do or failed to do or left undone in his judgment which will warrant the Iquitas concluding that he failed to properly evaluate the totality of the evidence led at the trial.
Now, evaluation of evidence and ascription of probative value to such evidence are the primary functions of a trial court which saw, heard and duly assessed the witnesses.
Where the trial court has satisfactorily evaluated the evidence, it is not the business of the appellate court to substitute its own views for those of the trial court. What the appellate court does is to ascertain whether or not there is evidence upon which the trial court acted. Once there is such evidence, the appellate court must not intervene. See A. D. vs. Fayose (2005) 10 NWLR (Pt. 932) 151 at 235 – 256; Sam vs. Ademibumi (2003) 20 WRN. In the circumstances, I see no merit in ground 6 and I resolve it against the Iquitas.
Having resolved all the issues against the Iquitas, it follows that this appeal is devoid of any merit and it deserves to be dismissed.
Accordingly, this appeal be and is hereby dismissed. The judgment of Nkop, C. J. in Suit No. HOR/2/79, delivered on 21/5/01 is hereby affirmed.
Costs of N10,000.00 each to the Iduas and Eyo Abasi people.
Appeal dismissed.
Other Citations: (2009)LCN/3231(CA)
