INYANG v. CCECC (2020)

INYANG v. CCECC

(2020)LCN/14188(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, May 22, 2020

CA/C/92/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Philomena Mbua Ekpe Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Between

NSEOBONG NOBERT INYANG APPELANT(S)

And

CHINA CIVIL ENGINEERING CONSTRUCTION CORPORATION NIGERIA LIMITED (C.C.E.C.C.) RESPONDENT(S)

RATIO

WHETHER OR NOT DECLARATORY JUDGEMENT IS GRANTED AT THE DISCRETION OF THE COURT

Basically, a declaratory judgment is discretionary. It is granted only where the plaintiff is able to convince the Court, that all facts where taken into account, he will be entitled to the exercise of the Court’s discretion in his favor. This was the position adopted in the cases of University of Lagos vs. Aigoro (1985) 1 NWLR (pt. 1) 143, Akinyemi vs. Odua Inv. Co. Ltd (2012) 17 NWLR (pt. 1329) 209. It follows therefore, that a party seeking for a declaratory relief, must of necessity succeed on the strength of the case made by him, and not on the weakness of the case of his adversary. See Eya vs. Olapade (2011) 11 NWLR (pt. 1259) 505 @ 525. PER BARKA, J.C.A.

THE FOUNDATION UPON WHICH CIVIL MATTERS ARE PREDICATED UPON

The foundation upon which civil matters are predicated upon is, that he who asserts must prove. That burden of proof unlike in criminal proceedings is not static. The clear wordings of Section 132 of the Evidence Act 2011, provides that the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. PER BARKA, J.C.A.

WHETHER OR NOT IT IS EVERY DOCUMENT ADMITTED IN EVIDENCE THAT HAS EVIDENTIAL VALUE

In any case, it is not every document admitted in evidence that has evidential value. The case of Abubakar vs. E. I. Chuks (2007) LPELR – 52 (SC) is apt.
“The fact that the document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein and must be accepted by the trial judge. It is not automatic. Admissibility of a document is one thing and the weight the Court will attach to it is another. The weight the Court will attach to it will depend on the circumstances of the case as contained or portrayed in the evidence. PER BARKA, J.C.A.

WHO CAN SUE FOR TRESPASS?

The state of the law is that it is the person in actual possession of the land and the person entitled to possession of the land that can sue for trespass. See Opoto vs Anaun (2016) 16 NWLR (pt 1539) 437, Okolo vs Uzoka (1978) 4SC 77, Amakor vs. Obiefuna (1974) 1 ALL NLR (pt.1) 119. PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of the Honourable Justice Nsemeke Daniel of the High Court of Akwa Ibom State, Eket Judicial Division in Suit No. HEK/54/2016 between Nseobong Nobert Inyang and China Civil Engineering Construction Corporation Nigeria Limited, delivered on the 10th of August, 2017.

By the said judgment, the lower Court conclusively held that:
My conviction is based on the fact that on the 19th of June, 2017, the Court visited the locus in quo. The plaintiff showed only a bare land which lies in front of the DW1’s house.
DW1 is the Community Laison Officer in the defendant’s company. He followed this case from the very beginning. I am persuaded to accept his evidence as being credible. In the final analysis, I find that the plaintiff has not proved that she was the owner of the land in contention.
The plaintiff is unable to discharge the burden of proof that she was in possession of the said land in order to be able to maintain an action in trespass against the defendant.
The plaintiff is not entitled to damages or compensation having not

succeeded in proving trespass.
In the end I hold that this case is without merit. All the reliefs are refused and the case is dismissed in its entirety.

It should be recalled that appellant before the lower Court took out a writ of summon dated the 25th of July, 2016 and filed the same day, wherein appellant sought for the following reliefs:
(a) A DECLARATION that the unlawful entry of the defendant into the plaintiff’s landed property at Esit Urua, Eket Local Government Area and the destruction of all the developments thereon is wrongful and amount to a trespass.
(b) AN ORDER that the sum of N18,700,000.00 (Eighteen Million, Seven Hundred Thousand Naira) only be paid to the plaintiff by the defendant as special damages arising from the valuation report already pleaded and/or representing the cost of value of the plaintiff’s development or values on the land.
(c) The sum of N11,300,000.00 (Eleven Million, Three Hundred Thousand Naira) only be paid by the defendant to the plaintiff as general damages for trespass.
(d) AN INJUNCTION to restrain the defendant from further use of her land above without being

compensated.

The Respondents, who were the defendants before the lower Court filed a statement of defense on the 29/8/2016, wherein the defendant denied the entirety of paragraphs 2-8 of the statement of claim, thus urging the Court to dismiss the suit with substantial costs.

The facts generating the instant appeal as can be deduced from the record, are that the Respondent herein, a road construction company were awarded a contract for the construction of the Eket – Ibeno Road which passed through Esit Urua village by the Akwa Ibom State Government.

It was the plaintiff’s case before the lower Court, that she is the owner of that piece of land situated along Eket/Ibeno road, Esit Urua village in Eket Local Government Area. That she had been in possession of the said piece of land and own the following therein.
(i) Three lock-up shops
(ii) Four bedroom residential flat
(iii) An outdoor toilet
(iv) An outdoor bathroom
(v) An outdoor kitchen
(vi) Waiting hall
(vii) 2 Nos shrines

Her further story is that she bought the land from one Udo Johnson now late in October, 1996 at the cost of

N500,000.00 and took effective possession and started developing same. That she surveyed the said land on the 15th of October, 1996 as shown on the pleaded survey plan, and also planted food crops, seasonal yields medicinal plants, economic trees, etc. That in the year 2004 she caused a building plan to be drawn, which plan was approved by the town planning authority Eket, and also paid N10,000.00 to the Ekit Urua Community Youth forum as demanded by custom.

She now complains that the defendant in the course of executing its road contract unlawfully and wantonly entered upon the land and destroyed all the yields, crops and developments including the shrines and medicinal garden, consequent upon which she approached the defendants for compensation which proved abortive, and this led to her approaching the lower Court for redress.

The Respondent herein, who was the defendant before the lower Court on the other hand states that the land in issue actually belonged to one Mr. Nsini Nobert Inyang, the elder brother to the plaintiff now Appellant, who purchased the land from one Udo Johnson Eshiet now late, under Native law and Custom. He states that the

said Mr. Nobert Inyang in his lifetime, granted the said piece of land to one Umoetuk Isukette of Esit Urua village to erect a piggery thereon, while the late Nsini Robert Inyang planted some annual crops in the remaining portion of the land.

The Respondent went further to state that the defendant upon being awarded the contract for the construction of the Eket-Ibeno road, surveyed the road in order to determine the expanse or area of land the road would be built on. That all the developments, including buildings structures, shrines etc were identified, consequent upon which the Ministry of Works and Town Planning with its approved Estate valuation firm, Emma Douglas and co, the defendant’s engineers and community liason officer for the road construction project appointed from Esit Urua village, carried out enumeration and identification of houses, structures, buildings or shrines or any development and their owners affected by the road construction. That with respect to the land in question, the body of person’s mentioned above during the said enumeration and identification exercise, found a permanent piggery as the only development on the

land. That the piggery was enumerated with the code number MLTP/EST/DUA/087C and the owner identified as Mr. Umoetuk Isukette of Esit Urua village. Further that the piggery was then evaluated and due compensation paid to the said Mr. Umoetuk Isukette of Esit Urua village.

Issues having been joined, parties proceeded to prove their various positions before the Court of trial. The Appellant as plaintiff before the lower Court, gave evidence and was recorded as PW1. Appellant in the course of her evidence, tendered exhibits A, B, C and D without objection. PW2, Elder Victor Etukudo also testified for the plaintiff and tendered exhibit E, being an evaluation report from his firm of valuers dated the 31st of May, 2016, and thereafter closed its case. The Defendant company called Anietie Uko Robert a member of staff under the defendants, and who testified for the defence, in the course of which he was recorded as DW1. Mr. Kufre Sunday Ufot, Estate Surveyor and Valuer, also testified for the defendant and tendered exhibit J, and closed its case. The Court thereafter proceeded to the locus in quo, after which parties filed written addresses which were adopted. The

vexed judgment was delivered on the 10th of August, 2017, dismissing the plaintiffs claim in its entirety.

Displeased with the judgment of the lower Court wherein its claim was dismissed, the plaintiff now appellant caused a notice of appeal to issue against the said judgment, filed on the 27/10/2017. The extant Notice of Appeal is the Amended Notice of Appeal filed on the 16/5/2019 with the leave of Court predicated upon five grounds of appeal. The appeal proper was entered to this Court on the 27/2/2018, but deemed properly transmitted on the 10/3/2020. Appellant filed a brief of argument on the 16/5/2019, also deemed filed on the 10/3/2020. On the same 10/3/2020, learned counsel appearing for the Appellant identified all processes filed by him, adopted the brief of argument in urging the Court to allow the appeal and to set aside the decision of the lower Court.

On the same 10/3/2020, learned counsel for the Respondent identified the brief filed on behalf of the respondent, filed on the 23/9/19, but deemed filed on the 10/3/2020, adopted the same and urged the Court to dismiss the appeal.

From the Appellant’s brief settled by Akpadiaha

Ebitu leading Kingsley I. Ogbu, specifically at pages 1-2 of the brief, five issues were identified for the resolution of this appeal as follows:
1. Whether in the light of the facts and circumstances of this case the trial judge acted rightly when it expunged Exhibit D and refused to rely on exhibits A, B and C which it earlier admitted during trial (from ground 2).
2. Whether the Court was right when it held that the land claimed by the Appellant is the same land Mr. Umoetuk Isukette was compensated for in total disregard of Exhibits B and F1 (from ground 4).
3. Whether the trial Court was right in law when it held that the date of the NBA Stamp and Seal of lawyer on Exhibit D is the material date for determining when Exhibit D was executed (from ground 3).
4. Whether the trial Court was right in law when it refused and/or failed to give effect to documentary evidence (exhibits A, B, C, and D) and award compensation upon the value of developments on the land claimed by the Appellant (from ground 5).
5. Whether the judgment of the lower Court is against the weight of evidence (omnibus ground).

The Respondent also in the brief

settled by Dominic Okon, the learned counsel for the respondent, crafted a single issue for the determination of the appeal thus:
“Whether the trial Court was right to hold that “the Plaintiff is not entitled to damages or compensation, having not succeeded in proving trespass” and therefore dismissed the suit.

Having accorded a solemn but dispassionate consideration to the issues offered for determination, I am of the considered view that the sole issue identified by the Respondent, where resolved, would take care of all the complaints by the Appellant. I therefore in the determination of this appeal adopt the single issue formulated by the Respondent for its clarity and precision.
Whether the trial Court was right to hold that “the plaintiff is not entitled to damages or compensation, having not succeeded in proving trespass and therefore dismissed the suit.

The learned counsel for the appellant submitting on whether the trial judge acted rightly when it expunged Exhibit D from evidence and also refused to rely on exhibits A, B, C and D earlier admitted during trial, conceded to the fact that a Court of law has the

power while writing his judgment to expunge and or refuse to rely on any document earlier admitted by it. The case of Nwabuoku & Ors vs. Onwordi & Ors (2006) LPELR – 2082 (SC) was cited in support of the legal principle.

He was however quick to add that in rejecting or expunging the already admitted document, a Court is duty bound to state the reasons for so doing, further submitting upon the authority of Brossette Manufacturing Company (NIG) Ltd vs. M/S Ola Ilemobola Ltd & Ors, that any document wrongly expunged, the appellate Court has the power to restore same in evidence. Also relying on the case law in Ishola vs. Oluwalogo (2013) LPELR – 22206 (CA), and Bashorun vs. Moronkeji (2017) LPELR – 43247 (CA) it was posited that exhibit D, coupled with the fact that she was in fact led into possession of the land, created an equitable interest, and therefore a basis upon which an order for specific performance can be founded upon. He argued that there was no uncertainty with regards to the date of the making of exhibit D, as was held by the lower Court, as the commencement date of exhibit D is the 2nd of October, 1996, and

commended the cases of APC vs. INEC (2015) ALL FWLR (pt. 771) 1420-1432, Section 157 of the Evidence Act 2011 as amended, Uchieze vs. Ezenagu & Ors (2010) LPELR – 5043 (CA), Imoh vs. Onanuga & Anor (2013) LPELR – 20682 (CA).

It was the further argument of learned counsel that exhibit D enjoys a presumption of regularity under the Evidence Act having been executed more than 20 years ago: Obawole vs. Williams (1996) 10 NWLR (pt. 477)146, and further argued that the Court failed in its duty when it refused to consider exhibits A – E tendered in evidence, also contending on the authority of UBA Plc vs. BTL Industries Ltd (2006) LPELR -3404 (SC) amongst others, that the documents tendered constituted an integral part of the plaintiffs case and the Court had no reason whatsoever not to have considered them. Further argued that had the Court considered the documentary evidence adduced therein, the decision of the Court would have been different and in favor of the appellant.

With respect to the issue, whether the land on which Mr. Umoetuk Isukette was compensated upon is the same land with the land under consideration, and also being

claimed by the appellant, it was contended by the learned counsel that the difference in terms of the area of the two parcels of land, shows that the area of land Mr. Umoetuk Isuette was compensated upon, was different from the area claimed by the appellant.

Responding to the issue on whether the trial Court was right in law when it held that the date on the NBA stamp and seal of the lawyer (legal practitioner) on exhibit D is the material date for the determination as to when exhibit D was executed, argued that the trial Court overstretched the importance of the principle that gave rise to affixing the NBA stamp to documents, the absence of which has been held to amount to an irregularity, maintaining that the lower Court erred in law in holding that there was uncertainty with regards to the date the NBA stamp and seal came into effect, and the date of the execution of exhibit D. Still responding to the question, whether the trial Court was right in law when it refused and or failed to give effect to the documentary evidence exhibits A – D placed before it, counsel relying on his earlier arguments on the issue, urged the Court to hold that she

was yet to be compensated for the developments that were destroyed by the respondent, and thereby rely on exhibits A-E and to award the reliefs sought before the trial Court. Finally submitting on the omnibus ground of appeal, whether the judgment of the lower Court was against the weight of evidence adduced at the trial, counsel relied on the authority of Okeke & Anor vs. Eze (2013) LPELR – 22455 (CA) and Agbamu vs. Ofili (2004) 5 NWLR (pt. 867) 540, to argue that where the evidence adduced by the appellant is placed side by side to that of the respondent, the evidence by the appellant would weigh more, and the lower Court was in grave error when it entered judgment for the respondent. On the whole, this Court was urged to resolve all the issues canvassed in favor of the appellant, allow the appeal, and set aside the decision of the lower Court and grant all the reliefs sought by the appellant before the trial Court.

Responding to the submissions made, learned counsel for the respondent urged the Court to dismiss the appellant’s case on the ground that appellant as plaintiff failed to establish his case with credible evidence. Analyzing the

pieces of evidence adduced, oral and documentary before the lower Court, learned counsel posits that the lower Court was right to have taken a critical look at exhibit D, and contended that appellant failed to satisfy the Court that she derived title from her late brother. With respect to exhibits A – E, which appellant complained were not considered by the trial Court, it was the reaction of the learned counsel that:
i) It is clear in evidence during trial that the respondent never demolished any structure in the course of the construction of the Eket-Ibeno road at all as canvassed by the appellant in paragraph 4.5.2 of her brief. The structures marked for demolition by the relevant Ministry of the Akwa Ibom State Government after due payment of compensation and the structure erected by the appellant after the road was aligned was also removed by the Akwa Ibom State Government.
ii) The valuation report exhibit E prepared for the purpose of payment of compensation to the appellant has nothing to do with the respondent, as the respondent was not dealing with valuation of estate affected by the road construction and was not responsible for the

payment of compensation. Exhibit F, which is the valuation report of the estate valuer appointed by the Akwa Ibom State Government – Emma Douglas & Co, is the only authentic document relied upon by the Akwa Ibom State to pay compensation. In exhibit F, the development found on the land which appellant claim in this suit was a permanent piggery a property of Mr. Umoetuk Isukette and crops grown thereat, which compensation was paid. See exhibits F1, F2 and j.

He went further to submit that the trial Court was right in refusing to attach any weight to the exhibits earlier mentioned to substantiate her claim for payment of compensation, as the exhibits are worthless and of no moment. He relied on the holding of the Supreme Court in the case of Musa Abubakar vs. E. I. Chuks (2007) LPELR – 52 (SC), which holding was to the effect that:
“The fact that the document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or make out the evidence contained therein. It is not automatic. Admissibility of a document is one thing and the weight the Court will attach to it is another.

The weight the Court will attach to it will depend on the circumstance of the case as contained or portrayed in the evidence”.
maintaining that exhibits A, B, C, D and E tendered by the appellant on their own do not prove that she is entitled to compensation nor did the exhibits establish the fact that the respondent trespassed on to her land. Yusuf & Anor vs. Mashi & Ors (2015) LPELR – 40757 (CA). Based on the foregoing, counsel urged the Court to dismiss the appeal as being frivolous and unmeritorious.

My understanding of the plank of the appellant’s case before the lower Court and by necessary implication this Court sitting on appeal, is relative to the complaint by the appellant, insisting that she was not paid compensation with respect to the developments, and other improvements on her land which was taken over by the respondent in the process of pursuing the construction of the road contract awarded to them. In other words, the complaint is hinged on the non – payment of compensation to the appellant with regards to her land and the developments thereon, which she claimed the respondent trespassed on to and destroyed,

while in the process of their contractual obligation of building the Eket/Ibeno road.

It is apparent from the record, that the writ filed by the appellant before the trial Court, and the relief sought in the accompanying statement of claim thereto, is seeking for a declaratory relief, and an order of injunction, pending when the respondents will pay compensation to the land in question, as well as for order of Court, for the payment of sums of money amounting to thirty million naira only. The order for declaration as couched is for “a declaration that the unlawful entry of the defendant into the plaintiffs landed property at Esit Urua, Eket Local Government area and the destruction of all the developments thereon is wrongful and amounts to trespass”.

(pt. 1329) 209. It follows therefore, that a party seeking for a declaratory relief, must of necessity succeed on the strength of the case made by him, and not on the weakness of the case of his adversary. See Eya vs. Olapade (2011) 11 NWLR (pt. 1259) 505 @ 525.

Coming to the case at hand, appellant as earlier stated, hinged his claim on being the owner of the land said to have been bought from one Udo Johnson Eshiet, now late, and in furtherance of which, a document evidencing payment for the consideration for buying the land, in the nature of a power of attorney was issued to her. Still with respect to the land, appellant stated that set out and developed the land by building shops, and erecting other buildings thereon, as well as planting some crops, medicinal herbs as well as a shrine, which were all destroyed by the respondents. In his defence, before the Court below, respondents pleaded and testified to the effect that the land in contention, which initially belonged to Udo Johnson Eshiet, now of blessed memory, was sold to one Nsima Robert Inyang, a brother to the appellant, who in his lifetime gave the same land to one Umoetok Isukette who

developed a piggery thereon, and the same Umoetok Isuekette, was duly compensated for the developments made on the land, by the agents of the Akwa Ibom State Government. Indeed the respondents called to question the genuineness and thereby the evidential value of the receipt earlier tendered by the appellant at the lower Court, which was taken as a receipt of payment and tendered in evidence. The lower Court supported its view in admitting exhibit D, based on the state of the law, that even though a receipt of payment cannot be pleaded or given in evidence in proof of title to land, unless it is registered, same can be admitted to prove an equitable interest and to prove payment of the purchase price thereof. See NBA vs. Nyoro (2019) 6NWLR (pt. 1669) 572.

The trial Court in admitting exhibit D must have taken this position of the law into consideration, thereby in its judgment, specifically at page 183 of the record, held that:
“Exhibit D is pleaded as a receipt and evidence of purchase of the land, exhibits A, B and C are pleaded as evidence of possession. This exhibits where unchallenged and accepted can create presumption of creation of

equitable interest capable of being converted into a legal estate in favour of the plaintiff”.

The Court, however while examining the genuineness of exhibit D, in its judgment, was of the view that:
“However the situation is different in this case. Firstly the DW1 has given evidence to show that the land in question was owned by one Umoetuk Isukette who acquires (sic) by purchase from one Nsini Nobert Inyang, the eldest brother of the plaintiff who also purchases (sic) same from one Udo Johnson Eshiet. It was Umotuk Isukette who developed the property by building a piggery farm. It was his piggery farm that was marked, valued and paid for and indicated in exhibit F1 as No. 158. The acknowledgment of receipt of compensation is exhibit J.
When the defendant pleaded these facts and called DW1 to lead evidence on them, the burden of proof of possession was thrown back at the plaintiff. The plaintiff had this burden because her suit was founded on trespass. The law is that trespass is an injury to the right of possession and the proper plaintiff in any action for trespass, is generally the person who is in actual or constructive

possession at the time of the trespass. He can always maintain an action in trespass against anyone but the true owner or anyone who can trace his action for title to later. Mere possession is sufficient to maintain an action. In an action for trespass, once the plaintiff can establish his possession even if he is a trespasser, a defendant can always justify his entry on the land by showing a better title. See Wuta-Ofei vs. Danqua (1961) 1 WLR 1238, Atunrase vs. Alh. Sunmola & Ors (1985) 1 NWLR (pt. 1) 105, Olubodun vs. Lawal (2008) 9MJSC 1 @ 54”.

Let me reverse a little bit. The foundation upon which civil matters are predicated upon is, that he who asserts must prove. That burden of proof unlike in criminal proceedings is not static. The clear wordings of Section 132 of the Evidence Act 2011, provides that the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. Thus by Section 133 of the same Evidence Act, 2011, the burden of first proving the existence or non existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were

produced on either side, regard being had to any presumption that may arise on the pleadings. Further still, by Section 136 of the Act under consideration, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence…
It follows therefore that in the context of the present case, appellant as plaintiff before the lower Court owe it a duty to the trial Court to establish the ownership (title) of the land in focus, and further to establish all those listed items said to have been destroyed by the respondent, so as to sustain her claim.

I did earlier mention that appellant sought to place reliance on exhibit D, being the power of attorney created between one Udo Johnson Eshiet, and in favour of Nseobong Nobert Inyang, given on the 2nd of October, 1996, to establish that she was the owner of the land allegedly trespassed on, having bought the said land from one Udo Johnson Eshiet, and further made some developments thereon upon payment of the necessary customary fees.
The lower Court in trying to give value to the said document, examined the document and thereby reasoned that:

As I take a careful look at exhibit D, I find that it was dated 2nd October, 1996. But the legal practitioners stamp/seal which came into force on the 1st of April, 2015, was fixed to the document. If one may ask, when was this document executed? Was it in 1996 or was 2015 (sic). This conflict in date could not be resolved by the plaintiff who had a duty to do so.
The uncertainty created by this conflict led to an inference that exhibit D was made when the fixing of the Legal Practitioners stamp and seal on documents prepared by lawyers was made mandatory which is from April 2015.
I am therefore of the firm view that exhibit D was admitted in error being a document made by a person interacted(sic) at the time when proceedings were pending or in anticipation of this case. See Section 83 (3) of the Evidence Act 2011, Owie vs. Ighiwi (2005) 21 NSCQR 207 @ 234”.
I agree with the state of the law, in that a purchase receipt is evidence that there was an agreement for sale of land, and that the consideration for sale was paid by the purchaser. In other words, purchase of land can be proved by a purchase receipt or by an agreement of sale, or by any

act that shows that such a transaction did in fact take place. See Onyeani vs. Avaja (2011) LPELR – 3835(CA), Ishola vs. Oluwalogon (2013) LPELR 22206 (CA), Basorun vs. Moronkeji (2017) LPELR – 43247 (CA). The appellant does not seem pleased with the observation made by the trial Court with respect to exhibit D, and its subsequent expulsion from evidence. If I understand the Court very well, exhibit D was expunged on the single reason that the document was prepared in anticipation of the institution of this case and therefore offensive to Section 83 (3) of the Evidence Act, 2011. The trial Court in reaching the decision to expunge the document earlier admitted, examined the document before it, which he is entitled to do, and observed that the learned counsel who prepared the document, apart from signing the said document, affixed his stamp/seal thereon. What baffled the learned trial judge was the fact that the document was said to have been executed in the year 1996, when of course the issue of legal stamp was not in practice. I have equally in the circumstance critically examined exhibit D, which can be found at pages 19 – 23 of the record, and I

am also baffled as to how a document said to have been executed in the year 1996, by one E. E. Ekanem Esq, can or bears the stamp/seal of the same learned counsel, Ekanem Ekanem Etukakpan, who executed the document for the parties, regard being had to the fact that the sealing of a document is a new innovation that only came into effect only in the year 2015. This is against the background that the respondent had averred that the documents were prepared in anticipation of the present action. Even though a judge in the system of law which we practice enjoins him to hold the balance evenly, without winking towards any side, a Court is a Court of justice, and a judge in that duty post, in his quest at achieving the ends of justice, can draw or infer on the facts before him. Tobi JCA, as he then was, supported this view in the case of Ezeadukwa vs. Maduka (1997) 8NWLR (pt. 518) 635, when he stated that:
“A trial Judge cannot draw inference in vacuo or in a vacuum but in relation to facts which justify such inference, and since an inference is an act of deducing or drawing a conclusion from existing premises by way of facts, the facts upon which the

inference is deduced or drawn must be in proximity or intimacy with the inference. Where an inference is at large, it cannot perform inferential function of drawing a conclusion from premises”.
Indeed the learned trial judge’s observation to the effect that the legal practitioner who executed the document, signed and affixed his stamp of authority as prescribed by the legal practitioners Act, which was not in vogue as at the year 1996, was right to have inferred that the document was indeed drawn sometimes, when the fixing of stamps/seal on documents became a necessity. The plaintiff in the instant case, failed to explain away, what took a 2015 process way back to the year 1996, and the trial Court rightly in my view was right to have concluded that the document exhibit D, was prepared in the year 2015, and in anticipation of the suit now filed, and consequently in violent conflict with the stipulations of Section 83 (3) of the Evidence Act, 2011, which provides that;
Nothing in this section shall render admissible any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute to any

fact which the statement might tend to establish.
The trial Court in this case refused to be taken for a ride, being cautious in view of paragraph 3(a) of the statement of defence filed by the defendant. I totally agree with the Court below and on the authority of Ayodeji vs. Ajibola (2013) ALL FWLR (pt. 660) 1327, agree with the Court expunging the document from evidence. With the finding that the document was not executed in the year 1996, but rather sometime when the issue of the lawyers stamp had come to play, the issue of presumption of regularity is of no moment and the case of M/S O. Ilemobola Co. Ltd vs. Kaduna State (2007) 7NWLR (pt. 666) 633 is inapplicable.

attach to it is another. The weight the Court will attach to it will depend on the circumstances of the case as contained or portrayed in the evidence.

Furthermore on the contention by the appellant on whether the land being contended upon, and that on which Mr. Umoetuk Isukette was compensated on, was the same piece of land, the lower Court was at ease in finding that the land claimed by the appellant and the land on which Mr. Isukette had his piggery and was indeed compensated is one and the same land. It should be recalled that on the 19th of June, 2017, the Court visited the locus in quo, see, the record of proceedings, at page 171 thereof, bearing the following:

At Locus In Quo
We arrived at the village called Esit Urua in Eket Local Government Area. Plaintiff Nseobong Norbert showed us a plain land and stated that she had a structure on the land. The structure was not marked but demolished. I think it is because it did not enter the right of way that is why it was not marked.
Defence.
Kufre Ufot, the estate valuer said, the house was put up after the government had paid compensation on the houses marked.

CLO.
At the bare land there were houses belonging to Udo Johnson, Friday Mathew. Their houses were marked and paid for before demolition.
Observation of the Court.
We find out that the land was a bare land. There was no house or any other structure. It was observed that the generator house belonging to Lutheran church was marked but not demolished.

From the foregoing, parties are ad idem that the land in contention is one and the same, and while proffering arguments on the issue, the appellant referred to the evidence of the DW 1, where the witness is heard as stating that:
i. The landed property claimed by the plaintiff in this suit is opposite my residential building in Esit Urua village.

That the said land was known to to be the landed property of Late Nsini Norbert Inyang who bought it from late Udo Johnson Eshiet under the tradition of Eket people.
iii. That prior to the construction of the road there was a piggery farm build (SIC) in the said land by Umoetuk Isukette of Esit Urua village, who claimed the land was given to him by the owner, late Nsini Nobert Inyang to build the piggery.

Learned Counsel for the appellant by his submission, referred to paragraph 3(a) and (b) of the statement of defense, wrongly referred to by the DW2, to posit that both parties are agreed that the land which originally belonged to Udo Johnson is one and the same land. I note that the learned appellant’s counsel while referring to the cross examination of DW 2 at page 170 of the record, would want the Court to hold that the witness therein confirmed that the land under reference, belonged to the plaintiff. Let me revisit the area once more.
Question: In your statement of defence, you alleged that the same Udo Johnson Eshiet is the original owner of the land sold to Umoetuk Isuette.

Answer: Yes my lord, what is in paragraph 3(a) and (b) of the statement of defence is that the plaintiff’s land and the land of Umoetuk Isuette was one land originally owned by Udo Johnson Eshiet.

On the other hand, paragraphs 3 (a) and (b) of the statement of defence where reproduced, reads:
3(a) specifically, the landed property which ownership is claimed by the plaintiff by purchase as averred in paragraph 3 of the statement of claim was on the record the landed property of late Mr. Nsini Nobert Inyang (the eldest brother of the plaintiff) who purchased same from late Udo Johnson Eshiet under native law and custom of Eket people. The attached unperfected power of attorney which the plaintiff claimed as evidence of her purchase is a calculated fabrication for the purpose of this suit. All other documents pleaded in the statement of claim are also fabricated for the purpose of this suit.
(b) Further to the above, the defendant states that late Mr. Nsini Nobert Inyang granted the said landed property to Mr. Umoetuk Isukette of Esit Urua village to erect a piggery thereat; while late Nsini Nobert Inyang planted some annual crops in the remaining portions of

the land.

It’s evident therefore that the answer granted by the DW2, under cross examination, which the plaintiffs seek to harvest as proof that plaintiff is the owner of the land in issue, cannot stand, the answer being tied to a paragraph that states the opposite of what was being claimed.

Thus in summing up the evidence adduced, the trial Court had this to say:
“PW 1 also admitted (sic) that her property for the defendant to work as not marked. I am unable to believe the story of the plaintiff. It is not credible. Certainly if there was any structure on the land in question, it must have been put up after the Government had cleared the land to align the road for the defendant to work.
What even makes the version of the plaintiff’s evidence doubtful is that Mr. Umoetuk Isukette has been paid compensation over the same land claimed by the plaintiff for the piggery farm he built on it.
I am convinced that Mr. Umoetuk Isukette was the person in possession of the land. My conviction is based on the fact that on the 19th of June 2017, the Court visited the locus in quo. The plaintiff showed only a bare land which lies in

front of the DW 1’s house. DW 1 is the community liason officer in the defendant’s company. He followed this case from the very beginning. I am persuaded to accept his evidence as being credible. In the final analysis I find that the plaintiff has not proved that she was the owner of the land in question. The plaintiff is unable to discharge the burden of proof that she was in possession of the said land in order to maintain an action in trespass against the defendant. The plaintiff is not entitled to damages or compensation having not succeeded in proving trespass”.

I am inclined in thinking that the summation by the learned trial Court judge makes a lot of sense. The state of the law is that it is the person in actual possession of the land and the person entitled to possession of the land that can sue for trespass. See Opoto vs Anaun (2016) 16 NWLR (pt 1539) 437, Okolo vs Uzoka (1978) 4SC 77, Amakor vs. Obiefuna (1974) 1 ALL NLR (pt.1) 119. The plaintiff by her own showing testified that she never knew when the road contract awarded to the defendant took place, nor was she aware of when compensation was paid. Interestingly with the

expulsion of exhibit D, the purported receipt of purchase, the bottom appears to have been knocked off the plaintiff’s case. In that case, exhibits A, B, C and E which derive their value on exhibit D, lose value and are of no moment. This is because where two claimants are contending on who to ascribe possession to, it is that person who can prove a better title that will carry the day. See Oriorio vs. Osain (2012) 16 NWLR (pt. 1327) 560. The respondent and the trial Court are in the circumstance correct in submitting that the exhibits tendered by the plaintiff/appellant do not by themselves prove that respondent trespassed on to her land, and therefore entitled to the whopping sums claimed as compensation. One may even wonder why appellant chose the respondent in laying her claim for trespass. In the first place, plaintiff saw nothing wrong with the earlier occupation of the land by the piggery farm who incidentally collected compensation for the development there on the land. Appellant equally has no dispute with the state government that awarded the contract in the first place, and contracted an agent to isolate and pay compensation on affected lands

and properties, nor does she fault the agent contracted with the payment of compensation in spite of the fact that she was made aware of who was doing what. Indeed as argued, plaintiff took it amongst herself to contract her own valuer dictating what should be paid to her as compensation. Unfortunately, the lower Court rightly in my view is of the opinion that the claim should stand dismissed for lack of proof. I entirely agree with the Court.

In the event, this appeal is grossly unmeritorious and it is hereby dismissed by me. The judgment of Justice Nsemeke Daniel of the Akwa Ibom High Court of Justice, Eket Judicial Division in suit No. HEK/54/2016, delivered on the 10th of August, 2017 is hereby affirmed.
The respondent is entitled to costs assessed at N100,000.00.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have the privilege of reading in draft the judgment delivered by my learned brother Hamma Akawu Barka, J.C.A. I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal lacks merit and ought to be dismissed.
I abide with the consequential order and order as to costs.

PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in advance the draft copy of the judgment just delivered by my learned brother, Hamma Akawu Barka, J.C.A. I agree that the appeal is devoid of merit and ought to be dismissed. Accordingly, the judgment of the lower Court in suit No. HEK/54/2016 delivered on the 10th day of August 2017 is affirmed.
I also abide by the orders made in the lead judgment.

Appearances:

Kingsley Ogbu Esq. For Appellant(s)

Inem Oherie Esq. For Respondent(s)