ALIU v. INANG & ORS (2020)

ALIU v. INANG & ORS

(2020)LCN/14508(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 08, 2020

CA/C/137/2017

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

PRINCESS (LADY) MODUPE OYEKAN ALIU APPELANT(S)

And

MR. CHARLES ANTHONY INANG 2. MRS. ELIZABETH A. INANG (Now Known And Addressed As Mrs. Francisca Bassey Okon) 3. OTU EKONG E. B. ASUQUO (Secretary/Member And Members Of Obong Arbitration Panel, Calabar South) RESPONDENT(S)

RATIO

WHETHER OR NOT EVIDENCE EXTRACTED UNDER CROSS EXAMINATION WHICH IS CLEARLY AGAISNT INTEREST, IS CONSIDERED AS THE BEST EVIDENCE IN LAW

It is the law that evidence extracted under cross examination which is clearly against interest is considered as the best evidence in law, as the law will not permit a litigant to blow hot and cold at the same time. See Iniama vs. Akpabio (2008) 17 NWLR (pt. 1116) 225 @ 344, Ezenwa vs. Ekong (1999) 11 NWLR (pt. 625) 55, Effiong vs. Ikpeme (1999) 6NWLR (pt. 606) 260, Onisaodu vs. Elewuju (2006) 13NWLR (pt. 998) 517 @ 529.
Also pronounced by the Apex Court on the issue is that:
“A statement oral or written made by a party to civil proceedings which is adverse to his case is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement”. See Artra Industries Nig. Ltd vs. NBCI (1998) 4 NWLR (pt. 546) 357 @ 408 per Mohammad JSC. PER BARKA, J.C.A.

DUTIES OF A COUNSEL TO HIS CLIENT

I totally agree with the appellant that the duties of counsel to his client is circumscribed by the Rules of Professional Conduct for legal Practitioners 2007, which to includes;
a) Consult with his client in all questions of doubt which do not fall within his discretion.
b) Keep the client informed of the progress and any important development in the cause or matter as may be reasonably necessary;
c) Warn his client against any particular risk which is likely to occur in the course of the matter;
d) Respond as promptly reasonably possible to request for information by the client; and
e) Where he considers the clients claim or defence to be hopeless, inform him accordingly. See Rule 14(2)(a)-(e) of the said Rules (Supra).
While the duty of a Court remains as stated in the case of Adeleke vs. Iyanda (supra):
“A trial Judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues in the case, and then proceed to resolve them. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported by law”. PER BARKA, J.C.A.

POWER OF A JUDGE TO VISIT THE LOCUS IN A LAND CASE

The Apex Court in Anyanwu vs. Mbara & anor (1992) LPELR-516 per Nnaemeka-Agu JSC, noted that the power of a judge to visit the locus in a land case is derived from Section 76 of the Evidence Act, and is regarded as part of the evidence called in the case. Enigwe vs. Akaigwe (1992) 505 @ 532. The Court however cautioned that in order to be seen as being impartial, and not to be seen as aiding either of the parties, the judge must exercise the power with caution, and only in exceptional circumstances and mainly for the purpose of throwing light on the case and with the acquiescence of the parties.
The Supreme Court in the case gave guidance in the following manner:
“it is a course which a judge can take only with due caution- with full advertence to the fact that, as he is not a party in the case, it is belief for one of the parties to apply for it. But where from the quality and quantity of the evidence called by both sides he finds himself in a position in which, without supplementing what he has heard with what he can see, he can only accredit one version of the conflicting evidence and discredit the other mechanically, he should bring to the notice of the parties the need for a visit to the locus and get their consent or acquiescence to it”. PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The appeal before the Court is against the decision of the High Court of Justice Cross River State, Calabar in suit with No. HC/49/2015, between Princess (lady) Modupe Oyekan Aliu and Mr. Charles Anthony Inang and two others, delivered on the 8th of December, 2016. By the said decision, the trial Court reached the conclusion that:
I hereby restrain the claimant/defendant to the counter claim by herself, her children, heirs and privies from the portion partitioned to the Children of Prince Anthony Inang. I equally restrain the children of Prince Anthony Inang by themselves, children, heirs and privies from the portion partitioned to the Claimant/Defendant to the counter claim.
There is no dispute that the claimant was the head of the family of late Madam Theresa Okon Anse up till today that it has been partitioned. I agreed she was managing the family property for all its beneficiaries which included the children of late Anthony Inang. There is evidence that late Anthony Inang managed the property before the claimant. There is no evidence that late Anthony was accounting to anybody when he

was managing that same property what was good for Anthony should also be good for this Claimant. I will not ask the claimant to account for her brother’s children over her management of her mother/Grandmother’s property. We should let sleeping dogs lie.
Now that the property has been partitioned, the claimant now owns her portion exclusively. The claimant is within her right to sell everything. As for the children of late Anthony, they now hold the portion partitioned to them as family property of their late father – Prince Anthony Inang. None of them can alienate their portion, even the eldest surviving child, without consulting his siblings.
I hope the family will now go and remain in peace.
I make no Order as to cost on this counter claim.
A Copy of Exhibit 1 shall always accompany any copy of this judgment to give it meaning.

It should be recalled that appellant as claimant before the lower Court took out a writ of summons against the respondents on the 28th of December, 2015 wherein claimant sought for the following reliefs:
1. A declaration that the claimant is entitled to the property being, lying and

situate at No. 26/14 Bonny Street, by Efut street Calabar South, particularly described on survey plan No. IN/3/96 made in the claimants mothers name, Madam Theresa O. Anse (nee Ikwo Bassey Okon) dated 16th of February, 1973 having inherited and managed the said property from her said late mother since 1981 upon her dead (sic and have been in physical occupation and control of the said property ever since without let nor hindrance as the only surviving child.
2. An order of perpetual injunction restraining the defendants either by themselves, their agents/staffs, servants, privies, cohorts and/or representative in action from attempting to partition or partitioning the said property for the purpose of sharing the said property in favour of the 1st and 2nd defendants by the 3rd defendants or any other person or group of persons howsoever and in whatsoever manner.
3. An order of perpetual injunction restraining the defendants either by themselves, their agents, servants, privies, cohorts the 3rd defendant and her members and/or representatives inaction from trespassing or further trespassing unto the aforesaid property particularly described in the

described in the aforesaid survey plan No. IN/3/96 and dated 16th February, 1973 made by a licence surveyor in Calabar in the Claimants mother’s name.
4. And a claim of N5,000,000.00 (Five Million Naira) only being general damages against the defendants jointly and severally for trespassing onto the said claimants property particularly on the 28/8/2015, and 21/10/2015 by the orders and directives of the 3rd defendant and its members directing the 1st and 2nd defendants to go into the said claimants property to write boldly on the walls of the building of the property aforesaid described as “This property is not for sale” to the embarrassment of the claimant.

Upon being served the writ of summons encompassing the statement of claim and all documents claimant felt necessary in proof of her case, the defendants, now respondents filed a statement of defence on the 14th of December, 2015 whereof they denied all the averments in the statement of claim contending that claimants are not entitled to any of the reliefs sought in the statement of claim. Furthermore, respondents counterclaimed as follows:
i. A declaration that all that

property situate at and known as 26/14 Bonny Street, Calabar and particularly delineated in survey plan No. IN/3196 dated 16th February, 1973 together with all the buildings and improvements thereon is the family property of late Madam Theresa Okon Anse Family.
ii. A declaration that the family of late Madam Theresa Okon Anse consist of two branches to wit, late Prince Anthony Inang Branch made up of the 1st counter claimant and his step brothers and princess Modupe Aliu branch made up of the defendant to the counter claim and her children.
iii. An order for the partition of late Theresa Okon Anse family compound situate at 26/14 Bonny Street, Calabar based on its original size into two equal plots by a surveyor appointed by the registrar of this Court, but whose fees shall be borne equally by the two branches of late Madam Theresa Okon Anse family.
iv. An order for Prince Anthony Inang branch of late Madam Theresa Okon Anse family to take one of the partitioned plot together with any building thereon and for Princess Modupe Aliu branch to take the 2nd plot with any building thereon provided that the portion alienated already by the defendant to

the counterclaimant shall be made a part of the second plot given to her branch.
v. An order of perpetual injunction restraining the defendant to the counterclaim, her children, heirs and privies from managing, occupying or interfering in any way whatsoever with the counterclaimants portion of 26/14 Bonny Street, Calabar as partitioned pursuant to the order of this Court.

The case for the appellant before the lower Court, as can be gleaned from the statement of claim was that, he was the only surviving child of the late Mrs. Theresa O. Anse, upon whom all the estate of the late Mrs. Theresa O. Anse devolved under Efik Native law and custom to the exclusion of all others. Claimant states that the late Mrs. Theresa O. Anse was upon her death in the year 1981, survived by two surviving children, Anthony Ekpenyong Inang and the claimant. Claimant further averred that even though her brother Prince Anthony never married, had two children upon his death in the year 1998. The claimant now claims that the entire estate known and described as No. 26/14 Bonny Street, Calabar south delineated in survey plan No. IN/3196 dated the 16th of February, 1973, devolved

upon her as the only surviving child of her mother. She presented the 1st and 2nd respondents as being amongst the children and one of the concubines of her late brother, while the 3rd respondent represents the Obong Arbitration Panel. That even though she had been in physical possession and management of the property, some of the concubines of her late brother and their children including the 1st and 2nd respondents moved into the property and laid claim thereto. She insists that by both the Efik customs and tradition and law, it is the children of a man or woman who died intestate that has his or her property exclusively devolved to the children and not the grandchildren. She goes on to recount her numerous acts of managing the property up to when she was petitioned before the Obong Arbitration Panel, and further stated that she rebuilt and renovated the entire estate in the year 2000, and thereby maintained that she as the only surviving child of the late Madam Theresa O. Anse, upon whom all that estate known as No. 26/14 Bonny Street Calabar devolved, as the heir apparent.

The respondents herein before the trial Court in their own narration denied

that the claimant was a surviving daughter of the deceased Madam Theresa Okon Anse, but rather a grandchild, having been born by one Mayen Okon Anse, who died leaving her two children Anthony and the claimant. Respondents state that when the late Madam Theresa died, she was survived by her two grandchildren and numerous great grandchildren, and her property thereby became family property. Respondents state that by the Efik custom, a family property is managed by a family head, usually the eldest surviving descendant of the original owner, and Prince Anthony Ekpenyong Inang, the father of the 1st defendant/respondent and husband to the 2nd defendant now respondent, managed the family property up to the year 1998 when he died, and upon the death of Anthony E. Inang, the claimant took over as the head of the family. Respondents also referred to series of litigations and applications made for the control of the soul of the property, and when they were informed that claimant intended to sell part of the property, the family engaged in arbitration, which the claimant finally withdrew from, and filed the case below.

In the trial proper, the claimant before the

lower Court testified in proof of her case, called one additional witness and tendered exhibits 1 – 8. The respondents on their part called two witnesses in their defence and also tendered exhibits 1 – 5 in evidence. At the conclusion of hearing, written addresses were ordered, filed and adopted, with the vexed judgment delivered on the 8th of December, 2016. Worthy of note is the fact that before the delivery of judgment, the Court on the 7th of December, 2016 visited the locus in quo.

Dissatisfied with the judgment of the trial Court, appellant on the 17th of February, 2017 filed a notice of appeal predicated upon five grounds of appeal. The appeal having been properly transmitted to this Court on the 12th of April, 2017, appellant filed a brief of argument on the 18th of August, 2017. The respondent in opposition to the appeal filed a brief on the 1st of November, 2017. The two briefs were identified and adopted by the respective counsel representing the parties on the 18th of June, 2020.

In the appellant’s brief settled by Giftson Ochuoba, and specifically at page 5 thereof, five issues were distilled from the five grounds of

appeal raised in resolving the appeal. The five issues are as follows:-
1. Whether the learned Trial Judge was right when he assumed jurisdiction, heard the respondents’ counter claim and entered judgment for the said respondents against the appellant when in law the said counter claim was statute barred with regards to land matters.
2. Whether the learned Trial judge was right when he declared the appellants property lying and situate at No. 26/14 Bonny Street, by Efut Street, Calabar inherited from her late mother as family property when actually the appellant is the only surviving child of the deceased mother, late Madam Theresa O. Anse.
3. Whether the Learned trial Judge was right when he ordered counsel to pay cost of N50,000.00 awarded against the appellant.
4. Whether the lower Court was not in breach of the appellant’s fundamental right to fair hearing when the trial judge instead of delivering judgment on 7/12/2016, when the matter came up for judgment but suo motu further adjourned the matter to the 8th of December, 2016 to enable him visit the property, and did visit the said property obtained fresh evidence from the parties

outside what was pleaded and relied upon at the trial during hearing and used the fresh evidence to enter judgment for the respondents against the appellants without allowing counsel for the parties or parties to cross examine the said parties on the fresh evidence.
5. Whether the entire judgment was not against the weight of evidence placed before the lower Court by the appellant.

Mr. Eke Edem, the learned counsel for the respondent on the other hand crafted two issues capable of settling the appeal as follows:
i. Whether the learned Trial Judge was right in holding that the property in dispute is owned by the late Madam Theresa Okon Anse Family and not by the appellant exclusively.
ii. Whether the learned Trial Judge was right in granting the 1st and 2nd respondents’ counterclaim.

I elect to consider this appeal based on the issues identified by the appellant.

Issue One.
Whether the learned Trial Judge was right when he assumed jurisdiction, heard the respondents counterclaim and entered judgment for the said respondents against the appellant when in law the said counterclaim was statute barred with regards to land matters.

The complaint of the appellant in respect to the issue borders on whether the counterclaim filed by the respondents before the lower Court was statute barred. Learned counsel referred to sections of the Limitation Law Cap. L14 Laws of Cross Rivers State 2004, which stipulates that in any action for the recovery of land, the time limited for approaching a Court of law is ten years from the date the cause of action accrued. Counsel submits that the challenge by the respondents as counterclaimant came late in the day, and therefore in breach of the Limitation law, the cause of action having arisen sometimes in the year 1998, when Anthony their father died, and claimant took over the land. Counsel continued to argue that the respondents having failed to activate their case in the year 1998, the lower Court lacked the jurisdiction to have entertained the case, that right having elapsed by the effluxion of time. He submits that jurisdiction is basic to adjudication, and relying on the case of Fasakin Foods Ltd vs. Shosanya (2006) 7 MJSC 48, opined that where a Court appropriately holds that it lacks the jurisdiction to entertain the matter, the action

should be struck out. He thereby urged the Court to resolve the issue in its favour.

The crisp response of the respondents, was that the adverse possession of the appellant was in the year 2011, when she sold portion of the land without the consent of the family, further submitting that their late father held the land as the family head and thereafter the appellant who also held the land for the family as head. He urged the Court to hold that the counterclaim is not statute-barred.

The plank of the appellant’s complaint herein is whether the counterclaim filed by the respondents as counter-claimant was in breach of the stipulations of the Limitation Law, Cross River State, 2004, and thereby ousted the jurisdiction of the lower Court to have entertained the counterclaim filed. Indeed the importance of jurisdiction to adjudication has been stated over and over. In the recent case of Utoo vs. APC (2019) ALL FWLR (pt. 994) 644 @ 680, the Apex Court re-emphasized the fact that an appeal initiated by an incompetent notice of appeal, i.e. in contravention of the dictum set out in Madukolu vs. Nkemdilim (1962) 2SCNLR 341, qualifies to be struck out.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The simple question to ask is, when was the cause of action in this case said to have accrued, and when was the action filed? Going by the simple definition of what constitutes a cause of action, which is those bundle of facts which the law recognises as giving a plaintiff a right of action, see Anukwu vs. Eze (2012) 11 NWLR (pt. 1310) 50, Fadare vs. AG Oyo State (1982) 4 SC 1, appellant wants the Court to hold that the cause of action in the instant case arose from the time respondents’ father died in the year 1998.
A critical examination of the evidence before the lower Court points to the fact that respondents’ father held sway on the land as the family head, which upon his demise was taken over by the appellant. In that position, appellant was said to have done excellently well warding away all adverse interests even without the knowledge or consent of the family members, seeSapo vs. Sunmonu (2010) ALL FWLR (pt. 531) 1408. In so doing, the law does not qualify him as the owner of the property, rather in my humble view, the contentious issue as posited and rightly too cropped up when appellant started to dispose part of the land. I agree

with the respondents/counterclaimants that cause of action rightly can be said to have arisen from that date being clearly within the 10 years permitted by the limitation law. I side with the respondents on this issue and thereby determine it against the appellant.

Issue Two
Whether the learned Trial Judge was right when he declared the appellant’s property lying and situate at No. 26/14 Bonny Street, by Efut Street, Calabar, inherited by her late mother as family property when actually the appellant is the only surviving child of the deceased mother, late Madam Theresa O. Anse, and whether the entire judgment was not against the weight of evidence placed before the lower Court by the appellant.
The contention by the appellant herein is that the lower Court erred in holding that the land in dispute is family property. He referred to the evidence given by the appellant and her witness, and the fact that she contested all actions meant to obstruct her obtaining the letters of administration in respect of her late mother, positing that by Section 131 (2) of the Evidence Act, the onus lies on he who asserts to proffer evidence in support of his case.

He made reference to the case of Ewo vs. Ani (2004) 17 NSCQR 36 @ 46 with regards to the five ways of proving title, asserting that having proved her title from inheritance from her mother, the burden shifted to the respondents to prove otherwise. The case of Bankole vs. Pelu (1991) 8NWLR (pt. 211) 523 was cited in support. Learned counsel further submitted that civil cases are determined on the balance of evidence adduced as to see which weighs heavier, contrary to the position of the lower Court relying on his beliefs and thereby entering judgment for the respondent. He accused the trial Judge of being sentimental and sarcastic and thereby descending into the arena, which invariably impaired his vision, and maintained that the duty of a trial Judge is to decide cases based upon the evidence demonstrated by the parties as decided in the cases of Adeleke vs. Ayanda (2001) 9 MJSC 171 @ 174, Bornu Holdings Ltd vs. Bogoco (1971) 1 ALL NLR 324, and Adeniyi vs. Adeniyi (1972) 4 SC 10 @ 17 amongst others. He submits finally that where a trial Court fails to properly evaluate the evidence before it, the basis of the appellate interfering and making its own findings

from the evidence adduced is guaranteed. He urged this Court upon the authorities of Fatoyinbo vs. Williams (1956) SCNLR 274 @ 275, Lawal vs. Dawodu (1972) 1 ALL NLR (pt. 2) 270 @ 286, Okpaloka vs. Umeh (1976) NSCC (vol. 10) 519 @ 533 to intervene in the matter and substitute its findings to those of the trial Court and to resolve the issue in favour of the appellant.

The respondents on the other hand in urging the Court to resolve the issue against the appellant, argued that the trial Court gave due consideration to the evidence rendered, most particularly the evidence against interest rendered by her witness. Learned counsel submitted that the onus was on the appellant to prove that she owns the land to the exclusion of the others as held in the cases of Atuanya vs. Onyejekwe & Anor (1975) ALL NLR 60, and Esoho vs. Asuquo (2007) ALL FWLR (pt. 359) 1355 @ 1377. Counsel narrated how upon the death of Madam Theresa Anse, Prince Anthony, the father of the 1st respondent, and the claimant inherited the property as family property, and upon his death being the then head of the family, claimant took over that status as family head, and referred to the

evidence by the CW2, who admitted in cross examination that 1st respondents father being her eldest son, became the family head. He referred to the cases of Anyafulu vs. Meka (2014) ALL FWLR (pt. 731) 1510, Usiobaifo vs. Usiobaifo (2001) FWLR (pt. 61) 1784 @ 1799, Oduok vs. Ekong (2012) ALL FWLR (pt. 652) 1809 @ 1815-1816 on the concept of family ownership amongst many others to contend that the property was indeed family property.

With regards to the appellant’s issue two now in contention, it was argued that the issue of letters of administration to the appellant does not translate to giving her ownership of the property, nor does the letter from the 1st respondent and the various litigations or improvements on the land aid the appellant granting her absolute ownership, and further that the sale of a portion of the land without the consent of family members does not vest her with absolute ownership either.

I have considered the arguments of learned counsel on the issue. Indeed the position of the law rests upon the legal principle that he who asserts has the burden of proof, which in simple terms, the appellant having asserted that the property in

litigation solely belongs to her, being the sole surviving child of the late Mrs. Theresa Anse, as permitted by custom has the bounden duty of proving that she was indeed the person entitled to solely inherit the property under consideration. The evidence adduced by the claimant in support of her claim, and that of her only witness is from pages 11 –24 of the record. Claimant leaned heavily on particular acts done in the preservation of the property, for example, challenging the Administrator-General of the Cross River State when he wanted to take over the administration of the estate, and thereafter proceeded to obtain in her own right, letters of administration. Claimant also referred to all the legal steps which she took in protecting the property from trespassers, submitting that having adduced such evidence in her favour, the burden shifted to the respondents to lay credible evidence that will oust the claimant as the owner of the property.

It is beyond contention that appellant hinged her ownership of the property on inheritance from her late mother. In the same vein, respondents likewise plead and adduced evidence wherein they based their

claim on being members of the family having as the source of their inheritance, their late father Prince Anthony a brother to the claimant. The lower Court on the issue considered the evidence adduced by the parties, oral and documentary, and concluded that the property is family property there being evidence that when Mrs. Theresa Asen died, the claimant had a brother Anthony, and both survived her.

Appellant now complains that the trial Court failed to evaluate facts placed before it, rather proceeding sentimentally to accept the evidence of the respondent. The appellant to my mind was correct in relying on the case ofOdofin vs. Mogaji (1978) NSCC 275 @ 276, to the effect that civil cases are decided on balance of probabilities. That judgment is ascribed to that party whose quality of evidence outweighs the other.

From the evidence on record, it is common ground that when Mrs. Theresa died, she was survived by two of her children, one Anthony the father of the 1st respondent and the claimant. It is in evidence also that upon the death of the said Mrs. Theresa Asen, her son Anthony took over the control of the house as family head. Even though

appellant sought to contest that fact in one breath, admitted the same in another breath. For instance, the appellant as deponent in her affidavit in support of her application to be joined as a party filed on the 31/10/2001, deposed therein that:
3. That my late mother madam Theresa O. Anse had only myself and my late brother Anthony Inyang who died in 1988 leaving me as the only surviving daughter of the family.
4. My said late brother had children from so many wives.
5. As a result of the aforesaid I allowed the property described as No. 26/14 Bonny street, Calabar to him to manage for the upkeep of his family.

Also at page 180 of the record, in reply to the complaint of attempt to unlawful sale of the property lying and situate at No. 26/14 Bonny Street, Calabar south, made against Madam Modukpe Oyekan Aliu, the claimant stated therein that:
– That the property now described as No. 26/14 Bonny Street, Calabar South does not belong to my late brother, Prince Anthony Ekpenyong Inang.
– The said property belong to our late mother, Madam Theresa O. Anse (nee Ikwo Ekpo Bassey) deceased.
– I and my late elder brother Anthony

Ekpenyong lived therein with our late mother until when I got married to my husband. Our late mother Theresa O. Anse died in 1981. I and my elder brother were left in the property but because I had to move in with my husband, my late brother was left in the property until he himself passed on in 1998.

Further to that, claimant’s only witness, Chief Etim Okon, admitted under cross examination, that it was correct that Anthony as the first son of Madam Theresa has a right in the property, and as the first son was the head of family of Madam Theresa, when he was alive, though he denied that as head of family he managed the property. The cumulative import of all those pieces of evidence, translates to mean that claimant adduced evidence against her interest, and thereby strengthened the case for the respondents that the property under consideration is family property. It is the law that evidence extracted under cross examination which is clearly against interest is considered as the best evidence in law, as the law will not permit a litigant to blow hot and cold at the same time. See Iniama vs. Akpabio (2008) 17 NWLR (pt. 1116) 225 @ 344, Ezenwa vs. Ekong (1999)

11 NWLR (pt. 625) 55, Effiong vs. Ikpeme (1999) 6NWLR (pt. 606) 260, Onisaodu vs. Elewuju (2006) 13NWLR (pt. 998) 517 @ 529.
Also pronounced by the Apex Court on the issue is that:
“A statement oral or written made by a party to civil proceedings which is adverse to his case is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement”. See Artra Industries Nig. Ltd vs. NBCI (1998) 4 NWLR (pt. 546) 357 @ 408 per Mohammad JSC.
Having clearly admitted that the Late Madam Theresa Anse was survived by the claimant and her senior brother Anthony Inyang, and that after the death of the said Madam Theresa, the said Anthony became the head of family, being entitled to the inheritance of his late mother, the assertion by the claimant that she was a sole survivor crumbles against her. See Onyenge vs. Ebere (2004) 13 NWLR (pt. 889) 20 @ 39, Akomolafe vs. Guardian Press Ltd (2010) 3 NWLR (pt. 1181) 338.

It is therefore evident that the lower Court considered the totality of the evidence adduced, and correctly in my view reasoned that:
“I do not see the need to belabour myself over

whether Anthony’s children were gotten in or outside wedlock and the claimant herself having acknowledged that her brother Anthony had children. See paragraphs 1 and 2 of exhibit D1, paragraph 4 of affidavit in support of motion filed on the 31/10/2001 in suit No. MC/1169/2011 in exhibit 6. In African societies only a man can acknowledge or denounce his paternity of a child. Anthony is now dead. I have however shown that the claimant has amply demonstrated that her brother had six children. Those children and the claimant are the correct beneficiaries of late Madam Theresa’s estate which the claimant is administering pursuant to letters of administration issue d to her by the High Court of Cross River State over the estate of late Madam Theresa Okon Anse. What was given to the claimant, exhibit 2 herein is called letters of administration not letters of ownership”. I entirely agree with him.
The respondent counsel hit the nail squarely on the head in asserting that the fact that appellant was given the management of the estate does not translate to ownership. See Ubreye vs. Esievo (2014) ALL FWLR (pt. 759) 1103. Equally appellant’s

reliance on exhibit 3, showing the various actions, law suits improvements and or renovations done on the administered land cannot vest exclusive title to the appellant as the administrator of the land either. See Sapo vs. Sunmonu (2010) ALL FWLR (pt. 531) 1408. Alao vs. Ajani (1989) 4NWLR (pt. 113) 1 @ 20, Tinuoye vs. Afolayan (2005) ALL FWLR (pt. 265) 1157.
I therefore reject the argument that the trial Court failed to evaluate the evidence before it, rather I am of the considered view that the Court took a holistic view of the evidence adduced and thereby arrived at a just decision on the point. I have not been availed any reason why I should interfere with the correct assessment done by the trial judge and thereby resolve the issue against the appellant.

Issue Three
Whether the learned Trial judge was right when he ordered counsel to pay costs of N50,000.00 awarded against the Appellant.
The appellant complains of the Court’s order that counsel for the appellant pay costs of N50,000,000.00 for no justifiable reasons. He submits that the duty of a legal practitioner to his client is governed by the Rules of Professional Conduct

for Legal Practitioners 2007. He submitted also that a counsel acts on the instructions of his client, and conducts his case to the best of his knowledge and ability. Also submitted that a fundamental principle of law is that judgment of a Court is confined to the issues raised by the parties in their pleadings, and therefore the Court is incompetent to raise an issue suo motu and proceed to judgment. He cited the case of Chitra Knitting and Weaving Co. Ltd vs. Akingbade (2016) ALL FWLR (pt. 857) 503 @ 529 in support of the legal position. Finally argued that learned counsel was not a party to the case and therefore since none of the parties asked for costs against the counsel, the Court should interfere and resolve the issue in favour of the appellant. The learned Judge, on the issue in contention did state in the judgment that:
“The Webber, J. who decided the Ogunmefun case referred to above is the man after whom Webber Street in Calabar was named. He served as a Judge in Nigeria at the turn of the 1900’s so those decisions are of great antiquity and they adorn our law Report and Books. The decision I have referred to above were there before

any of us in this Courtroom became lawyers. Those law reports are not Pandora’s boxes which must not be opened. What I am trying to say is that lawyers owe themselves the duty to charge and earn fees upon which they live, just as they owe those clients from whom they extract a fees a duty to advise them capably and competently. No lawyer who offers himself for hire to members of the public is entitled not to know about legal principles settled since about 1900. That is crass irresponsibility if counsel for the Claimants as above, since 2015, and if possible give them the law reports to read themselves, like I sometimes did when I was in practice, everybody would have avoided the waste that this case has now become, particularly to the Claimant.
I believe this is where her Counsel should have guided her properly to avoid the waste that this litigation has become to her. When the Claimant believed that the Letters of Administration issued to her over the Estate of Madam Theresa gave her title to the estate, her counsel should have counselled her before by informing her that Letters of Administration does not give title but only enables the holder to

administer the Estate for the benefit of its beneficiaries. They never told her so”.
My opinion is that the complaint by the learned appellant counsel is well funneled as it is obvious that neither the respondent counsel and or this Court would lend its support to muzzling any counsel that appears in Court. It must always be borne in mind that counsel and the Judge are ministers and equal participants in the temple of justice. Counsel advises the Court pursuant to the instructions given to him by his client, and his knowledge of the law, all in furtherance to the attainment of justice. In all fairness nothing stops a judex drawing the attention of counsel to any relevant authority, material to the determination of the issue before him, just like learned counsel who dutifully draws the attention of the Court to decisions that are relevant to the determination of the case before him. It is regrettable therefore that the trial Court in the circumstance, was led to holding the opinion that counsel ought to have known particular judgments, and to have acted on them in advising his client, thus forestalling the initiation of the claim, and the fact that

learned counsel is unaware of the said decisions or lacks such knowledge should draw a penalty against such counsel.
I totally agree with the appellant that the duties of counsel to his client is circumscribed by the Rules of Professional Conduct for legal Practitioners 2007, which to includes;
a) Consult with his client in all questions of doubt which do not fall within his discretion.
b) Keep the client informed of the progress and any important development in the cause or matter as may be reasonably necessary;
c) Warn his client against any particular risk which is likely to occur in the course of the matter;
d) Respond as promptly reasonably possible to request for information by the client; and
e) Where he considers the clients claim or defence to be hopeless, inform him accordingly. See Rule 14(2)(a)-(e) of the said Rules (Supra).
While the duty of a Court remains as stated in the case of Adeleke vs. Iyanda (supra):
“A trial Judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with

his personal knowledge of matters not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues in the case, and then proceed to resolve them. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported by law”.
Furthermore, under no circumstance is a judge legally allowed to raise an issue suo motu and decide same without the contributions of the learned counsel on both sides. I must agree with the learned counsel that the trial judge exhibited unwarranted irritation, and thus seriously arrived at a misguided demonstration of weakness as a judge. I see merit with regards to the issue and accordingly resolve same in favour of the appellant.

Issue Four.
Whether the lower Court was not in breach of the Appellants fundamental right to fair hearing when the trial judge instead of delivering judgment on the 7th of December, 2016,

when the matter came up for judgment, but suo motu adjourned the matter to 8th of December, 2016 to enable him visit the property, and did visit the said property, obtained fresh evidence from the parties outside what was pleaded and relied upon at the trial during hearing and used the said fresh evidence to enter judgment for the respondents against the appellants without allowing the counsel of the parties or parties to cross examine the said parties on the fresh evidence so obtained.

The complaint of learned counsel for the appellant herein borders on the trial Court’s visit to the locus after reserving the case for judgment. Learned counsel referred to the reason advanced by the trial Judge: “When I got to this stage of this judgment I felt the need to visit the locus to be in an informed portion (sic) to do the partitioning which I am about to do here”, contending that parties are bound by their pleadings, and cannot be allowed to plead one set of facts, then turn round base his case on totally different set of facts. It was then argued by learned counsel further on the issue that where a Court raises an issue suo motu, the parties

must be given the opportunity to be heard, failing which the principle of fair hearing is said to have been breached. The case of Chitra Knitting and Weaving Manufacturers Ltd vs. Akingbade (supra) @ 531-532 was referred to.

Counsel urged the Court to evaluate the evidence on record in line with the case cited, and thereby resolve the issue in its favour.

The crisp response of Mr. Edem to the issue was that the visit to the locus in quo was informed to enabling the trial Judge partition the property in two equal parts as sought in the counterclaim, and the appellant had no reason to complain since there was no specific appeal on the manner the land was partitioned.

I think this issue simply put is rooted in the trial Court’s order for a visit to the locus in quo, and the evidence derived therefrom in reaching the decision arrived at. The Apex Court in Anyanwu vs. Mbara & anor (1992) LPELR-516 per Nnaemeka-Agu JSC, noted that the power of a judge to visit the locus in a land case is derived from Section 76 of the Evidence Act, and is regarded as part of the evidence called in the case. Enigwe vs. Akaigwe (1992) 505 @ 532. The Court

however cautioned that in order to be seen as being impartial, and not to be seen as aiding either of the parties, the judge must exercise the power with caution, and only in exceptional circumstances and mainly for the purpose of throwing light on the case and with the acquiescence of the parties.
The Supreme Court in the case gave guidance in the following manner:
“it is a course which a judge can take only with due caution- with full advertence to the fact that, as he is not a party in the case, it is belief for one of the parties to apply for it. But where from the quality and quantity of the evidence called by both sides he finds himself in a position in which, without supplementing what he has heard with what he can see, he can only accredit one version of the conflicting evidence and discredit the other mechanically, he should bring to the notice of the parties the need for a visit to the locus and get their consent or acquiescence to it”.
In the instant case, as shown at pages 421 of the record, the appellant and 1st respondent were in Court, so also the respective counsel on their behalf. Nonetheless, the happenings

at the scene cannot be said to accord with the basic principles required in a visit to the locus. The Supreme Court in the case of Olumolu vs. Islamic Trust of Nigeria (1996) LPELR-2626 (SC), per Iguh JSC, emphasized that a trial judge should under no circumstance put his personal observations at the locus in quo in place of the evidence before the Court. It advised that a judge in such an occasion must avoid placing himself in the position of a witness, and thereby arriving at conclusions based upon his personal observations of which there is no evidence on record.
With the above legal principle in mind, it seems clear to me that the lower Court on the penultimate date made observations recorded at pages 421 and thereafter proceeded in his judgment at pages 427 – 428 of the record to rely on same in reaching its decision.
The complaint of the appellant therein is that they were denied fair hearing in that regard. Specifically, on ground four of appellant’s grounds of appeal which complained about the trial Court suo motu visiting the locus, after and extracting fresh evidence outside the evidence pleaded and adduced at the trial. Nothing

stops a Court of trial proceeding to visit the locus even where the case has been adjourned for judgment, just like in the instant case, see Chukwuogor vs. Obuora (1987) LPELR-865 (SC), but as mentioned earlier, the Court must in order not to be seen to be partial, allow parties lead evidence on the area the Court wants to be ironed out, and if possible to re address on the issue. That was the proper thing to do. A Court of law is precluded from leading parties to the locus in quo, making observations and using the same to found his judgment, or decision. Appellant now seeks to leverage on the recent case of Chitra Knitting and Weaving Manufacturing Company Ltd vs. Akingbade (supra) per Onnoghen CJN, which emphasised the security a litigant enjoys in the determination of his civil rights and obligations, and therefore called upon the Court to interfere with the decision of the lower Court on the issue. I do agree with him that it is not every wrong procedure that will nullify a judgment. The learned trial Court in visiting the locus in quo based its reason for doing so on, the need to equitably divide the land as demanded by the counterclaimants. But worthy of

note is the fact that the counterclaimants did not ask the Court to do just that. Rather, a close examination of their third relief counterclaimants asked for a surveyor appointed by the Court to demarcate the land amongst the feuding parties. Parties are granted what they ask for and not what the Court thinks they should get. The consequence is that prayer three granted to the respondents is hereby set aside. In its place I order that the Court avail the parties a qualified licensed surveyor who shall demarcate the land in two, with each of the two camps entitled to a portion each.

This appeal succeeds in part. The decision of the lower Court asking appellant’s counsel to pay costs of N50,000.00 is hereby vacated. The counterclaim succeeds accordingly. There shall be no order on costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Hamma Akawu Barka, JCA. I agree with the reasoning and conclusion reached in the judgment. I agree also that the appeal succeeds in part. That the counter claim succeeds.
I abide with the order as to costs

PHILOMENA MBUA EKPE, J.C.A.: I was

given the privilege of reading in advance the draft copy of the judgment just delivered by my learned brother, Hamma Akawu Barka, JCA. I agree that the appeal succeeds in part and I also abide by the orders made in the lead judgment.

Appearances:

Chris Ekong Esq. For Appellant(s)

Eke Edem Esq. For Respondent(s)