Mr. Michael Udo Udo V. Mr. Emmanuel Uwem Umo Anyankana (2016)

LawGlobal-Hub Lead Judgment Report

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

 This is in respect of an appeal against the judgment of the High Court of Akwa Ibom State, Ikot Ekpene Judicial Division delivered by OKON J. on the 7th August, 2014.

The respondent as claimant had taken out a writ of summons against the appellant, his nephew over a parcel of land lying and situate at Abiakpo Ikot Essien, Akwa Ibom State. In the said writ dated 22nd of December, 2011 the respondent sought the following reliefs:

1. A declaration that the claimant is entitled to the statutory right of occupancy over the parcel of land lying and situate at Abiakpo Ikot Essien along Abiakpo Road known and called “Ikot Anyankana or Mbat Enen” and covered by survey plan No. WIMS/AK7362/96.

2. A declaration that any document of title acquired by the defendant in respect of the land now disputed other than that presented at the Village Arbitration Panel and at the Ikot Ekpene District Court dated 9/3/88 and 9/2/88 in Suit No. HT/4A/86 between one Umo Essien Akpan Essien and Udo Adiako Udo Ukut in respect of a different property is a fraud and of no effect.

3. An order of

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perpetual injunction restraining the defendant, his agents, privies and cohorts from further trespass into the claimant’s land aforesaid.

4. An order directing the defendant to pay to the claimant the sum of Ten Million Naira (N10m) as damages for all acts of trespass into the land of the claimant.

5. Cost of action/writ assessed at N100,000.00.

On being served with the originating processes, the appellant filed a defence and counter-claimed against the respondent as follows:

(a) A declaration that the defendant trespassed into the land of the plaintiff known as and called Mbat Enen lying and situate at Abiakpo Ikot Essien Village in Ikot Ekpene Local Government Area of Akwa Ibom State.

(b) Special damages to the tune of N149,000.00 (One hundred and forty-nine thousand Naira).

(c) General damages to the tune of N846,000.00 (Eight hundred and forty-six thousand Naira).

(d) A perpetual injunction restraining the defendant by himself, his agents/servants or other person however called from further and continuous trespass on the land of the plaintiff.

At the end of the trial, the learned trial Judge in the judgment

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delivered as afore-said on 7th August, 2014, refused to grant the relief of the respondent/claimant for declaration of title to statutory right of occupancy but granted his relief for trespass while dismissing the counter-claim of the appellant/defendant.

Each side had reservations about the judgment and while the appellant filed a notice of appeal on the 15th October, 2014, the respondent also filed a cross-appeal on the 6th November, 2014 but deemed properly filed and served on the 3rd March, 2015.

In respect of the main appeal, the learned counsel for the appellant, Mr. Okon adopted his appellant’s brief filed on 26th February, 2015 but deemed properly filed and served on the 3rd March, 2015 as the appellant’s arguments in this appeal.

For the respondent, Mr. Udo adopted his respondent’s brief filed on the 9th March, 2015 as the arguments of the respondent in this appeal.

The appellant formulated 4 issues from his grounds two to five in the notice of appeal thereby abandoning ground one. The said issues adopted by the respondent are as follows:

1. Whether the plaintiff (now respondent) was in possess of the land at the

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time the suit was filed and/or whether the learned trial judge was right in ascribing possession of the land to the plaintiff.

2. Whether the trial judge was right in awarding on auxiliary relief after the main claim of the claimant had failed and was dismissed.

3. Whether the Court was right in dismissing the defendant’s (now appellant’s) counter-claim.

4. Whether the trial Court had evaluated and placed due probative weight to the evidence of the defendant/appellant.

Issues 1 and 2 are interrelated and shall be taken together.

Arguing these issues for the appellant, Mr. Okon submitted that the appellant was in possession of the land prior to the commencement of litigation having gone to village arbitration to complain of respondent’s trespass, the decision of which he appealed leading to the present litigation.

He argued that where ownership is in dispute, possession goes to the party with better title but that the moment respondent failed in his bid for declaration of title, the learned trial Judge was in error to ascribe possession to him. He referred to EZIKE v. EGBUABA (2008) 11 NWLR (Pt. 1099) 627 at 631, EGBA v.

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APPAH (2005) 10 NWLR (Pt. 934) 464 at 470 and AKINDIPE v. C.O.P. (2000) FWLR (Pt. 5) 709 at 711.

The learned counsel further submitted that the moment the respondent/claimant failed in the main claim, the ancillary reliefs ought to have been dismissed as well. He referred to MUDASHIRU v. PERSONS UNKNOWN (2006) 8 NWLR (Pt. 982) 262 at 270.

For the respondent, Mr. Udo submitted that while the respondent established unbroken possession of about 28 years and clearly stated the boundaries of the land in dispute, the respondent only brandished documents of cases unrelated to the parties and the disputed land without showing evidence of possession. He therefore urged the Court to hold that the trial Court was in order to have held that respondent was in possession of the said land. He referred to OLONADE v. SOWEMIMO (2014) 14 NWLR (Pt. 1428) 472 at 479 and CHUKWU v. AKPELU (2014) 13 NWLR (Pt 1424) 359 at 363.

He further submitted that none of the reliefs of the respondent/claimant at trial was dependent on the other and that the learned trial Court was in order to have granted the relief for trespass. He referred to MUSTAPHA v. ABUBAKAR (2011)

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3 NWLR (Pt. 1233) 123 at 132.

It is settled law that trespass is an infringement to the right to exclusive possession of land. See MBANEFO v. AGBU (2014) 57 NSCQR 410.

The parties in this case both made conflicting assertions of exclusive possession of the land in dispute. While the respondent also sought reliefs granting him declaration of title to the said land, the appellant simply counter-claimed for trespass.

It is trite that in civil cases onus of proof is discharged on balance of probabilities. The process of deciding and weighing the adduced evidence of the contending parties in a civil dispute was described thus by FATAI-WILLIAMS, JSC:

Therefore, in deciding whether a certain set of facts given in the evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the other, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the

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appropriate law to it; if that law supports it bearing in mind the cause of action, he will then find for the plaintiff. If not, the plaintiff’s claim will be dismissed. In certain circumstances, however, the claim is either struck out or the plaintiff is non-suited. See ODOFIN v. MOGAJI (2004) 1 LC 686 at 689.

The pleadings of the parties comprise the statement of claim filed on 22/12/2011 on pages 4-8 of the record of appeal, the further amended statement of defence containing the counter-claim filed on 28/3/2014 on pages 164-169 and the reply to defendant’s statement of defence containing the defence to counter-claim filed on 22/5/2012 on pages 125-130 respectively.

In the statement of claim, the respondent as claimant averred as follows in Paragraphs 3, 4, 5, 11, 12, 13, 14, 18 and 19:

‘3.The claimant is the surviving son of late Umo Anyankana and grandson of late Chief Anyankana of Atan Family in Abiakpo Ikot Essien. After the demise of late Umo Anyankana, assets and liabilities belonging to the late Umo Anyankana devolved on the claimant. One of such asset is the land called Ikot Anyankana or Mbat Enen because of its location, lying

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and situate along Abiakpo Road near the premises of Worldwide Mission Church Abiakpo Ikot Essien, Ikot Ekpene.

4. The claimant avers that after partitioning of the late Umo Anyankana properties, the land called ‘Ikot Anyankana or Mbat Enen’ was portioned to the claimant. He took possession and control of the property since 1982. The claimant authorized mother of the defendant late Madam Nwa Umo Anyankana and his brother Essiet Umo Anyankana to cultivate and take care of the land between 1984 to 1989 when he was away from the village. There has been no problem or adverse claim from anybody until fate 2009 when the defendant started exerting claim to the property on ground that his mother used to cultivate on it. A documents authored by the defendant as at 2008 confirming his true names and relationship with the claimant is pleaded and shall be relied upon at the trial.

5. The claimant states further to Paragraph 4 above that the land now disputed is lying along Abiakpo Road Ikot Essien at Mbat Enen layout and has the following boundaries and features:

(a) In the front (1st side) the road called Abiakpo Road.

(b) By the left (2nd side) Church

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entrance/premises of the Worldwide Mission, Abiakpo Ikot Essien

(c) By the right (3rd side) – the land of Mr. Ukpong Umo Akaso

On the land are eleven (11) stands of palm trees and a big cluster of Indian bamboo trees all belonging to the claimant.

The defendant does not have any land or share any boundary with the land now disputed.

11. The defendant instead of suing at the High Court of Justice Ikot Ekpene for title made celebrations in the village and told many people that he was given title to the land by the Magistrate Court, Ikot Ekpene. On the 21st day of September, 2011, he went into the land of the claimant and harvested palm fruits. This was reported to the police. The defendant was arrested and charged to Court in Charge No. MIK/140C/2011 – A certified true copy of the order transferring the matter to the High Court of Justice is pleaded and shall be founded upon at the trial.

12. The claimant stated that he had been in peaceful possession of the land for many years. He surveyed the land now disputed in 1996 and Survey Plan Number WIMS/AK7362/96 dated 12/12/1996 was produced in the name of the claimant. A copy of the said

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Survey Plan is pleaded and shall be relied upon at the trial.

13. The claimant states further to Paragraph 12 above that in 2011, he updated the Survey exercise of the land in line with surcon requirement and a new Survey Plan with relevant certificate of deposit issued by the Surveyor General. The said updated Survey Plan and relevant certificate of deposit are pleaded and shall be relied upon at the trial.

14. The claimant states further that while the defendant was facing the criminal trial at the Magistrate Court over the crime of stealing palm fruits/cones from the land of the claimant, the defendant went with armed policemen and a Surveyor to the land of the claimant on 17/11/2011 to survey the same land. Many people including the Village Head reacted and invited the police for intervention. Copies of letters reporting and disproving the action of the defendant to superior police officers/authorities are pleaded and shall be relied upon at the trial.

18. The claimant states further that while the police authority were investigating the use of armed policemen for land surveying exercise on the 17/11/2011, the defendant went into the land of

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the claimant and harvested palm fruits on 22/11/2011. A copy of the report to the police by the claimant dated 22/11/2011 is pleaded and shall be relied upon at the trial to establish the act of trespass committed by the defendant.

19. The claimant states further that the defendant will continue to commit further acts of trespass on the claimant’s property unless restrained by the Honourable Court.’

The appellant/defendant averred in Paragraphs 3, 5, 7, 8, 9, 12, 13, 15, 16, 17, 18, 20, 23, 35, 37 and 38 of the said further amended statement of defence as follows:

3. The defendant state that Paragraph 3 is false. That the land, the subject matter of this case is known as and called Mbat Enen and does not belong to the claimant. It does not in any way relate to Umo Anyankana family. The land the subject matter of this suit is the bona fide property of Nto Ntuen house which devolve to the defendant.

5. The defendant denies Paragraph 4 of the statement of claim and shall put the claimant to the strictest proof thereof. Defendant avers that there is no land called “Ikot Anyankana” in Abiakpo Ikot Essien village and no partition was

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ever made to the claimant in respect of Mbat Enen or any other person from Umo Anyanko’s family.

7. The defendant avers that the land the subject matter in dispute was deforested by his great grandfather late Chief Ntuen. That after deforestation, the late Chief Ntuen had been in peaceable possession, cultivating on the land and doing all manner of things on his land until he died.

8. That the said late Chief Ntuen married 2 wives and was blessed with two sons, Okure Ntuen and Udo Ukut Ntuen. His properties were shared to his two sons who had been in peaceable possession and enjoyment of their respective portions of land till death. This land in question was the share of Udo Ukut Ntuen – defendant’s grandfather.

9. That the grand father of the defendant was Udo Ukut Ntuen. Defendant’s grand father was in peaceable possession of this land and even built o church on a portion of the land called Christ Army Church. That church is still on the land and is now called World Wide Mission. The name of the church was changed when my grand father died and the management of the church went into the hand of Chief Udo Ana Ibiong.

12. That the father of

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the defendant was in possession of Mbat Enen, the land now in dispute and did all acts of possession till dead without any encumbrance. He cultivated same till he died.

13. That after the death of the father of the defendant his uncle Umo Essien Akpan Essien took custody of the land for the defendant and his other brothers to wit: – Okon Udo Udo and the defendant Michael Udo Udo.

15. The defendant avers that he, with the said two brothers sued the said uncle before the Abiakpo Village Council to arbitrate over the land, the subject matter of this case. The uncle Umo Essien refused to subject himself to the arbitration to the end.

16. That in the course of which the defendant with his two brothers Paul and Udotong Udo Ukut summoned Umo Essien Akpan Essien to the District Court, Ikot Ekpene in Suit No. TKDC/289/83. The case was decided in favour of the plaintiff and the two brothers now late. The record of proceedings in the said No. IKDC/289/83 shall be founded and relied upon in this case. Same is hereby pleaded.

17. The defendant state that his uncle Umo Essien Akpan Essien appealed against the said District Court Judgment in Suit No.

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MIK/9A/84. The appeal failed and was dismissed. The uncle further appealed to the High Court Ikot Ekpene in Suit No. HT/4A/84. These cases were ruled in favour of the defendant in this case. The records of proceedings of the Magistrates and High Court shall be founded upon in this case. Same are hereby pleaded. All this while, the claimant was still in Abiakpo Ikot Essien Village.

18. The defendant avers that since then he had been in peaceable possession of the land and planted different kinds of economic crops including pear trees, orange trees, oil palm trees, quaver trees, pineapple, afang-vegetable and cassava among others.

20. The defendant avers further that he has since been in peaceable possession of the land and planted all kinds of crops mentioned in Paragraph 40 of the statement of defence.

The defendant avers further that the land now in dispute is bounded as follows:

North: by the land of Ndarake Akpan Umo;

Udo Udo Ubam; Udo Ana Ibiong and the land of Ebewo Ekpo.

South: by the road called Abiakpo Road.

East: by the land of James Akpan Udohoaya.

West: by the land of Dan Akpan Ekpo; Monday Udo Umo; Essien

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Umoren; Sunday Idio Udoka and Udo Usoro Okon Akpan.

23. The defendant avers further that the plaintiff never authorized the mother of the defendant as his brother and as stated in Paragraph 4 of the statement of claim or any other persons to cultivate the land now in dispute between 1984 to 1989 or any other time. The claimant never left the village as alleged within the period and has always remained in the village Abiakpo Ikot Essien, Ikot Ekpene Local Government Area. Defendant’s mother cultivated the land of her late husband, defendant’s father.

35. Defendant avers that Paragraph 18 of the statement of claim is false. At all times after the judgment in Suit No. HT/4A/86. The defendant had always cultivated the land till date. The plaintiff never gave the land, the subject matter of this suit to the mother of the defendant to cultivate or having any dealing on it. The defendant inherited the land from his forefathers and through Court judgment which confirmed defendant’s ownership of the land. Defendant’s mother of all material time cultivated the land as her late husband’s property and nothing more.

37. Defendant avers that Paragraph 20 is

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false. The land defendant harvested palm fruits is his bona fide landed property. Defendant has not trespass to the land of the plaintiff or stole palm fruits on his land. Plaintiff does not have any land called “Mbat Enen” in Abiakpo Ikot Essien Village.

38. Defendant avers further that he is not in any desperate mode to claim the land from the plaintiff rather it is the plaintiff who is desperate to claim the land of the defendant and even trespass, intimidate and used police to take over the land of the defendant when the defendant has been in possession of this land having inherited some from his father.

In Paragraphs 1 (c) and (d) and 2(i)-(iv) of the Reply to Defendants Statement of Defence, the respondent/claimant averred as follows:

1. (c). The name “Mbat Enen” refers to a wide expanse of land properly described as layout where many people own lands under our local land tenure system. Ikot Umo Anyankana is in Mbat Enen Layout just as the land of the church – Worldwide Mission Church, land of Ukpong Umo Akaso and land of Mrs. Nkanta are in the same Mbat Enen Layout.

(e) The only land the defendant had in the Mbat Enen layout was

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sold out to the Worldwide Mission Church in 1976 and in 1993.

2. Contrary to the averments in Paragraphs 7, 8, 9, 10, 11 and 12 of the statement of defence, the claimant states that:

(i) The land now disputed was deforested by Late Chief Anyankana of Atan Nto Ntuen Family in Abiakpo Ikot Essien.

(ii) The portion where Christ Army Church-now Worldwide Mission Church is located is not in dispute before this Court. Part of the church premises was sold by the defendant to the church.

(iii) The defendant grandfather was not buried on the disputed land and there is no grave on the land specifically covered by Survey Plan No. WIMC/AK7362/96.

(iv) The land now in dispute had never been in possession of the defendant father but a portion of it was briefly in the possession of the claimant’s sister – Madam Nwa Umo Anyankana and another portion in possession of the claimant’s brother-Essiet Umo Anyankana on the permission of the claimant. Defendant’s father died many years before defendant’s mother-sister of the claimant was allowed or permitted to cultivate a portion of the land now disputed.

In line with his pleadings, the

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respondent/claimant adduced oral and documentary evidence at trial which included survey plan made in 1996 as Exhibit B and the certificate of deposit of Survey plan Exhibit B1 and his complaint to the police against the appellant as Exhibit G. it also included copy of the charge against the appellant/defendant at the Chief Magistrate Court marked rejected for unjustified reasons of being from a criminal case as shown on page 328 of the record of appeal.

This document is on page 37 of the record of appeal, it is relevant as it goes to possession of the land in issue and is a certified true copy as evident on the face thereof. It was wrongfully rejected.

The appellant/defendant on his part never tendered a survey plan of the land in dispute but relied on the description thereof made in the pleadings.

His pleadings and evidence included his aborted attempt to survey the land in dispute.

He tendered processes in a number of litigations in support of his case, Exhibit J from the District Court of Ikot Ekpene, Exhibit K from suit no. MIK/9A/84 at the Magistrate Court, Ikot Ekpene, Exhibit L, the ruling in suit so. HT/4A/86 at the

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Akwa Ibom State High Court, Ikot Ekpene Division and Exhibit M, the record of proceedings in Suit No. IKDC/79/2011 at the Customary Court of Akwa Ibom State, Ikot Ekpene District Court.

The case involving Exhibit J at the District Court was between the appellant together with two of his siblings on one side against their uncle for distribution of the appellant’s late father’s land at Mbat Enen. Before that Court, while responding to the questions put to him by that Court as shown on page 77 lines 23-26, the appellant listed the respondent’s late father among those who had pieces of land at the said Mbat Enen.

Their uncle against whom the action was brought also stated on lines 3-5 of page 82 of the record of appeal, while testifying before the said District Court in response to a question from the appellant that he knew Anyankana as one of those living upon the said land.

Exhibit K was in respect of an appeal from the judgment delivered in Exhibit J, Exhibit L was a further appeal to the High Court from Exhibit J, while Exhibit M was in respect of an action between the appellant and Village Elders over the arbitration decision in favour

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of the respondent.

These cases did not advance the appellant’s case in any manner. If anything, the proceedings in Exhibit J contain admissions by the appellant that his late father’s land existed side by side as neighbours with the land of the progenitors of the respondent thereby further validating his claim.

All these point to the consistency of the case presented by the respondent/claimant.

The relief of the respondent/claimant granted by the trial Court is as relates to trespass which as earlier pointed out goes to exclusive possession and has nothing to do with title, as exclusive possession is good against the whole world except the person with superior title to the land. See UFOMBA v. AHUCHAOGU (2003) 14 NSCQR 159.

Where a party is found to be in possession of land as the respondent/claimant was found, onus fell on the appellant to show his entitlement to go on to the said land which the appellant/defendant failed to show. See DUMEZ v. OGBOLI (1972) NSCQLR 393.

I therefore resolve these issues against the appellant and in favour of the respondent.

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The remaining issues 3 and 4 are equally interrelated and

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shall also be taken together.

Arguing these issues, Mr. Okon submitted that the learned trial Judge did not give adequate consideration to the evidence adduced by the appellant/defendant/counter-claimant before dismissing same but was rather swayed by final address of his counsel which omitted the said counter-claim. He referred to DARAMOLA v. ATTORNEY-GENERAL ONDO STATE (2000) FWLR (Pt. 6) 1000.

He further submitted that on a proper appraisal of the evidence adduced at trial the trial Court ought to have dismissed the entire claim of the respondent while granting the counter-claim of the appellant. He referred to BABATOLA v. ALADEJANA (2001) FWLR (Pt. 61) 1620 at 1673.

He urged this Court to invoke its appropriate powers and grant the reliefs sought in the counter-claim of the appellant. He referred to OBIENECHE v. AKUSOBI (2010) 185 LRCN 1 at 8.

For the respondent, Mr. Udo submitted that a counter-claim as a separate action ought to have been supported with credible evidence which was not done by the appellant and that the failure of his counsel to address the Court on it implied the abandonment thereof. He referred to

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OLUSANYA v. OSINLEYE (2013) 7 NWLR (Pt. 1367) 148, EYIGEBE v. IYAJI (2013) 11 NWLR (Pt. 1365) 407 at 413, UNIJOS v. IKEGWUOCHA (2013) 9 NWLR (Pt. 1360) 478 at 484 and BILANTE INT. LTD v. NDIC (2011) ALL FWLR (Pt. 598) 804.

He further submitted that the judgment of the trial Court accorded with the evidence adduced at trial.

He urged the Court to dismiss the appeal.

A counter-claim is a separate action. It must be established by credible evidence for it to be sustained. See JERIC NIGERIA LTD v. UNION BANK OF NIGERIA (2000) 4 NSCQLR 254 at 272, OGBONNA v. A.G. IMO STATE (1992) 1 NWLR (Pt. 220) 647 and OYOM AGBOR & ORS v. CHARLES ADOMI OBIA (2013) ELC (1116) 1, UNOKAN ENT. LTD. v. OMUWIE (2005) 1 NWLR (Pt. 907) 299 and OBASI BROTHERS MERCHANT CO. LTD v. MERCHANT BANK OF AFRICA SECURITIES LTD. (2005) 21 NSCQR 275 at 298.

The counter-claim of the appellant before the trial Court was set out earlier in this judgment. It is rooted in trespass and as earlier observed the appellant failed to establish his exclusive possession to the land in issue. Having thus failed, it goes without saying that his counter-claim was bound to fail

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notwithstanding the omission of appellant’s counsel in this regard.

In my view, the said counter-claim was rightfully dismissed by the learned trial Judge.

The position of the law as stated by the Supreme Court is that when a judgment is appealed from as being against the weight of evidence, the Appeal Court must make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it, if, on full consideration it comes to the conclusion that the judgment is wrong. If however the appeal Court is in doubt, the appeal must be dismissed since the burden of proof is on the appellant. See EKI v. GIWA (1977) NSCQR 253 at 257 relying on FASHANU v. ADEKOYA (1974) 1 ALL NLR (Pt. 1) 35.

According to ONNOGHEN, JSC:

“It is settled law that evaluation of evidence and the ascription of probative value thereto reside within the province of the Court of trial it that saw, heard, and assessed the witnesses and that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own views

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for the view of the trial Court. However, the Court of Appeal can intervene where there insufficient evidence to sustain the judgment, or where the trial Court fails to make proper use of the opportunity of seeing, hearing and observing the witnesses or where the findings of fact of the trial cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by evidence before the Court. See EDJEKPO & ORS v. OSIA & ORS (2007) 29 NSCQR 842 at 885.

From the totality of the evidence adduced before the trial Court I cannot see any justifiable basis to accede to the request of the appellant herein.

In the circumstances, I therefore resolve the remaining two issues against the appellant and in favour of the respondent.

I therefore find no merit in the appeal and I accordingly dismiss it with N50,000.00 cost to the respondent, against the appellant.

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Other Citations: (2016)LCN/8705(CA)