EDET v. IYAK & ORS (2021)

EDET v. IYAK & ORS

(2021)LCN/15149(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/C/154/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

APOSTLE PAUL ESSIEN EDET APPELANT(S)

And

1. KINGSLEY EDET IYAK 2. EMMANUEL ASUQUO EKPE 3. OBONG JOHN ASUQUO EKPE 4. IMAIKOP ASUQUO EKPE RESPONDENT(S)

RATIO

MEANING OF THE MAXIM “STATUS QUO ANTI-BELLUM”

“Status quo anti-bellum means ‘before the beginning of the war.” PER MOJEED ADEKUNLE OWOADE, J.C.A.

POSITION OF THE LAW REGARDING THE TIME FRAME WITHIN WHICH AN ACTION TO RECOVER LAND MUST BE COMMENCED

The learned trial judge was thus right to have held that: “The cause of action in this matter is the alleged trespass by the 1st Defendant in 1996 when he entered the land and built a structure thereon. But we cannot begin to reckon the cause of action from 1996 since the Claimant had gone to Court. The Magistrates’ Court decided the matter in 1997. The cause of action in my view would shift to 1997. Since then the next moment the Claimant went to Court was in 2013. This was 16 years after the decision of the Magistrates’ Court. Section 1 of the Limitation Law, Cap. 78, Laws of Akwa Ibom State Vol. 4, 2000 provides as follows: No action shall be brought by any person to recover any land after the expiration of ten (10) years from the date of which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” PER MOJEED ADEKUNLE OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellant against the judgment of Hon. Justice Godwin I. Abraham of Akwa Ibom State High Court in Uyo Judicial Division which was delivered on the 9th March, 2017.

The Appellant as Claimant took out a writ on 10th November, 2014 and claimed both in the writ and statement of claim as follows:
1. A declaration of title to a piece of land known as and called, “NDON IKOT AMBO” lying and situate at AKPA UBE LANE, UYO near 1st Defendant’s house at 27 Akpa Ube Lane, Uyo in Akwa Ibom State.
2. An order of the Court directing the 1st Defendant to remove and/or demolish illegal block fence over the said land purporting to cede same to his compound.
3. FIVE HUNDRED THOUSAND NAIRA (N500,000.00) being damages for trespass to the said land.
4. Perpetual injunction restraining the Defendants, their agents, privies and assigns from further acts of trespass to the said land.

Pleadings were filed and exchanged. The Defendants/Respondents amended their pleadings and filed Amended Statement of Defence on 10th March, 2016. The Claimant

in his evidence traces title to the land in dispute which he describes as Ndon Ikot Mbo and as lying and situate along Akpa Ube lane, off Aka Road, Uyo Local Government Area of Akwa Ibom State, by traditional history. The Appellant/Claimant alleges that the land in dispute was deforested by his great great grandfather Umo Ambo and the same revolved through the generations on his great grandfather, his grandfather, father and then on the Claimant/Appellant.

The Claimant’s/Appellant’s parents have been in an uninterrupted and peaceful possession of the land in dispute and been cultivating same. One Daniel Ekpe had his land which shared common boundary with the land in dispute. During the life time of the Claimant’s/Appellant’s parents, the 1st Defendant/Respondent lived with the said Daniel Ekpe. When the road called Akpa Ube Lane was constructed, it divided the land in dispute into two parts. One part fell into the side where Daniel Ekpe had his house and at the backyard of the house. The Claimant/Appellant sold the land on the other side of the road to one Apostle Emmanuel George who built the Mount Zion Light House Full Gospel

Church and also to some other person who built a cold room.

When Daniel Ekpe died, the 1st Defendant/Respondent took over his house. He pulled down the house which Daniel Ekpe built and erected his own permanent building and in doing so, he now arranged his house to face Akpa Ube Land thereby annexing into his compound the land in dispute that fell on that side of the road. He also proceeded to erect a perimeter fence enclosing the Claimant’s land. In 1996, the 1st Defendant/Respondent trespassed on the land in dispute and cut off the boundary sticks. When the Appellant/Claimant confronted the 1st Defendant/Respondent, he alleged that the 2nd, 3rd and 4th Defendants/Respondents sold the land to him. The Appellant/Claimant sued the 1st Defendant before the District Court in 1996 and judgment was given in favour of the Appellant/Claimant. The 1st Defendant/Respondent appealed to the Magistrate Court which nullified the decision of the District Court.

After the judgment of the Magistrate Court, the Appellant witnessed that he went back to cultivate the land. In 2013, the 1st Respondent constructed a perimeter fence enclosing the land in dispute in his

compound. The Appellant/Claimant again instituted an action against the 1st Respondent in the district Court in 2013. The case was heard to conclusion but the District Court transferred the matter to the High Court.

The case of the Respondents is that the land in dispute including where the 1st Respondent has his house, belonged to Daniel Ekpe. Daniel Ekpe owned the land across the road where the Appellant/Claimant sold to someone to build the Mount Zion Light House Full Gospel Assembly Church. The said Daniel Ekpe who was a cousin to the 1st Respondent and an uncle to the 2nd – 4th Respondents died without an heir. The 2nd – 4th Respondents sold the land to 1st Respondent in 1988. When the 1st Respondent noticed that Appellant/Claimant had sold the portion of the land across the road (i.e., Akpa Ube lane), he restrained himself from causing trouble because a Church was built there. The 1st Respondent erected his building on the other side of the land.

At the hearing of the case, two witnesses testified for the Appellant/Claimant and tendered 3 exhibits. The Respondents/Defendants also called 2 witnesses and tendered 3 exhibits.

The trial Court was then called upon to determine:
1. Whether or not this action is not statute barred.
2. Whether or not the Plaintiff has been able to prove his claim to be entitled to the reliefs sought.

Learned trial judge then held in respect of the 1st issue that the suit is statute barred. He reasoned that when the Claimant was being cross–examined on 8th December, 2015, he said “It was in 1996 that the 1st Defendant trespassed into my land and I sued him.”
He continued at page 216 of the record:
“The cause of action in this matter is the alleged trespass by the 1st Defendant in 1996 when he entered the land and built a structure thereon. But we cannot begin to reckon the cause of action from 1996 since the Claimant had gone to court. The Magistrate Court decided the matter in 1997. The cause of action in my view would shift to 1997. Since then the next moment the Claimant went to Court was in 2013. This was 16 years after the decision of the Magistrate Court.”
Before the above, the learned trial judge said:
“There is evidence that in 1996, the District Court gave judgment in

favour of the Claimant over the land in dispute. But this judgment was nullified by the Magistrate in 1997. The Magistrate Court had ordered that parties should return to status quo’.
The status quo here is the state of affairs which prevailed before the Defendant went to Court in 1996 when the Claimant alleged that the 1st Defendant trespassed on the land in dispute and erected a structure thereon as alleged by the Claimant.”

Having held against the Appellant /Claimant that his claim is statute barred, the learned trial judge considered it unnecessary to resolve the 2nd issue. He however expressed his opinion that:
“Perhaps I should mention in summary that the Claimant even on the merit would not be entitled to declaration of title to the land in dispute in his favour as the subject matter has not been defined. In all the evidence, there is no mention of the building between the land in dispute and the landed property said to be owned by Daniel Ekpe…“

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing three (3) grounds of appeal on 24th May, 2017.

The relevant briefs of arguments are:
1. Appellant’s brief of argument which was filed on 27th April, 2018 but deemed filed on 19th January, 2021. It is settled by Felix E. Udoh, Esq.
2. Respondents brief of argument filed on 12th January, 2021 but was deemed filed on 19th January, 2021. It is settled by Francis Ekanem, Esq.
3. Appellant’s reply brief was filed on 18th January, 2021 but was deemed filed on 19th January, 2021. It is settled by Felix E. Udoh, Esq.

Learned counsel for the Appellant nominated two (2) issues for determination of the appeal:
1. Whether the learned trial judge was right when he dismissed the Claimant’s/Appellant’s claim on the ground that same was statute barred (Ground 2).
2. Whether the identity of the land in dispute was not known to the Defendants/Respondents (Grounds 1 and 3).

Learned counsel for the Respondents adopted the issues nominated by the Appellant for determination. Learned counsel for the Appellant on issue 1 referred to the case of ADEJUMO VS. OLAWAIYE (2014) ALL FWLR 1910 at 1917 and submitted that:
“Whether an action is statute – barred is determined by

looking at the writ of summons and the statement of claim, alleging when the wrong was committed which gave the Plaintiff a cause of action …”

He submitted that Sections 1, 2 (1) and 7 (1) and (2) of the Limitation Law, Laws of Akwa Ibom State, Cap. 78, 2000 are to be considered in this appeal to determine whether the Claimant’s/Appellant’s suit is statute barred.
He reproduced the Sections thus:
1. No action shall be brought by any person to recover any land after the expiration of ten years from the date of which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.
2. (1). Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of dispossession or discontinuance.
7. (1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this

section referred to as “adverse possession”) and where under the foregoing provision of this law any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue until adverse possession is taken of the land.
(2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to accrue unless the land is again taken into adverse possession.

Learned counsel for the Appellant submitted that after the decision at the Magistrate Court ordering the parties to maintain status quo that is the position they were before Exhibit ‘1’ the Appellant pleaded that:
“he continued to cultivate the land in dispute as he used to before the suit and the appeal ….“

He reasoned that the question is after the judgment in MU/4A/1996 which was decided in 1997 who was in possession of the land in dispute? He answered:
“There is absolutely no evidence that the 1st Defendant/Respondent had

taken adverse possession of the said land not until the year 2013 when he constructed perimeter fence around the land enclosing it into his compound and prevented the Claimant/Appellant from further cultivation of the said land.”

He submitted that the learned trial judge failed to consider Section 7 (1) of Limitation Law of Akwa Ibom State which in the circumstance of the Claimant’s/Appellant’s case would begin to run from 2013 and not 1997 as found by the learned trial judge as the 1st Defendant/Respondent was in adverse possession of the land in the year 2013, after the nullification of Exhibit 1.

He submitted that Section 7 (2) of the Limitation Law, Cap. 78, Laws of Akwa Ibom State 2000 further explain why the Limitation period by the pleadings of the Claimant/Appellant in paragraphs 14 to 22 of his Statement of Claim at pages 7 to 9 of the record will not take place in 1997 but in the year, 2013. From 1997 when the Court in MU/4A/1996 returned the parties to the status quo, the 1st Defendant/Respondent was in adverse possession in 2013 and that was when the period of limitation began to run. He urged us to hold that the claim

of the Appellant was not statute barred.

Learned counsel for the Respondent defended the position taken by the learned trial judge. He submitted that the resolution of this issue turns on the narrow point, what was the status quo in relation to the land in dispute? He referred to paragraph 14 of the Appellant’s Statement of Claim where he stated thus:
“14. In the said 1996, the 1st Defendant went into the disputed land and cut off the boundary trees such as Okono and Itumo trees and used part of it to erect his Church …“

That it was this cutting down the trees and building the Church on the disputed land in 1996 by the 1st Respondent that prompted the Appellant to sue the 1st Respondent in Suit Nos. 2/96 and 3/96 in the District Court. Thus, the status quo as ordered by the Magistrate Court was the alleged trespass on the land and building of the Church thereon by the 1st Respondent in 1996.

He submitted that there is nowhere in the Statement of Claim of the Appellant where he pleaded that after the judgment in MU/4A/96, the 1st Respondent removed the Church from the disputed land and handed over the land to the

Appellant. That, rather in paragraph 21 of the Amended Statement of Defence, the 1st Respondent denied paragraph 16 of the Statement of Claim and stated that the Appellant had never cultivated any part of the disputed land. The Appellant said counsel did not file a reply to this averment.

Learned counsel for the Respondents referred to Section 1 of the Limitation Law Cap. 78, Laws of Akwa Ibom State Vol. 4. 2000 and the cases of WOHEREM VS. EMERUWA & ORS (2004) LPELR – 3500 pp. 16 – 17; SIFAX (NIG.) LTD. & ORS. VS. MIGFO (NIG.) LTD. & ANOR. (2015) LPELR – 24655 pp. 59 – 72.

He reiterated the salient facts of the case relating to the issue as follows, when the Appellant took out Suit Nos. 2/96 and 3/96 in the Offot District Court for the trespass allegedly committed by the 1st Respondent in 1996 on the disputed land, time stopped running in determining the period of limitation. However, when in 1997 the Uyo Chief Magistrate’s Court allowed the appeal against the judgment of the Offot District Court in the aforementioned case, time for the calculation of the period of limitation resumed.

Moreso, said counsel, as the judgment of the Uyo Chief Magistrate’s Court in Suit No. MU/4A/96 set aside the judgment of the Offot District Court. In that circumstance and considering that the Church building of the 1st Respondent put up by him in 1996 was still on the disputed land, the Appellant was duty bound to proceed further to ventilate his grievances speedily and within time. By the time he did so in 2013, again at the Offot District Court, he was out of time and when he approached the Court below in 2014, he was far out of time.
He urged us to resolve the issue in favour of the Respondents.

The determination of Appellant’s issue 1 depends on the construction of paragraphs 14 – 22 of the Appellant’s Statement of Claim, which I reproduce below:
14. In the said 1996, the 1st Defendant went into the disputed land and cut off the boundary trees such as Okono and Itumo trees and used part of it to erect his Church and when the Claimant accosted him as to why he trespassed to the said land, the 1st Defendant alleged that the 2nd to 4th Defendants sold the land in dispute to the 1st Defendant. The 2nd to 4th Defendants who

did not reside with their late uncle, Daniel Ekpe did not know the actual boundary of the land between Daniel Ekpe’s land and the Claimant late father’s land (land in dispute) and the Claimant who shared boundary of land with Daniel Ekpe’s land was not invited during the purported sale to demarcate the real boundary
15. The Claimant did not take the laws into his hand. He sued the 1st Defendant at Offot District Court in Suit Nos. 2/96 and 3/96 for injunction and declaration of title to the land in dispute which the said District Court granted. The 1st Defendant was ordered to vacate the land in dispute and remove the temporary structure he called church on the disputed land. The Claimant pleads and shall rely on the Certified True Copy of the said judgment.

The 1st Defendant appealed against the said judgment on the ground that the said District Court had no jurisdiction to hear and determine the said case because the land, subject matter of the appeal situates in the Urban Area and the Appellate Court upheld the appeal and ordered the parties (Claimant and 1st Defendant to return to and maintain the status quo). The Claimant

pleads and shall rely on the Court order in Suit No. MU/4A/96;
16. After the decision in the said appeal, the Claimant continued to cultivate the land in dispute as he used to before the suit and the appeal against its judgment which was resisted by the 1st Defendant by incessant resort to the machinery of the Nigeria Police Force to arrest the Claimant in connection with his right to his property.
17. The arrest and counter arrest resulted in the 1st Defendant taking the matter to the arbitration of Ikot Ambo family in Aka Offot, Uyo in 2007 which was presided by Chief Okon Edem Ekpenyong as Chairman, Elder Joseph Ekong as secretary other members included:-
1. Chief Edem Asuquo Okpon
2. Chief James Eyo Ita
3. Madam Sarah Edem
4. Mr. Effiong Okon Edet
5. Friday Ambrose Asuquo
6. Mr. Ekong Asuquo Ekpe
7. Mr. Solomon Paul Essien
8. Madam Akon Ita Eyo
9. Prophet Imaikop Ekpe
18. During the arbitration in the said matter, the 1st Defendant who brought the matter for arbitration exhibited non-challant attitude in prosecuting the matter by absenting himself from deliberation on several occasions leading

to incessant adjournments. The refusal of the 2nd to 4th Defendants to tell the truth by showing the dimension of the purported sale of Daniel Ekpe’s land to the 1st Defendant was a major blow to the panel which made the dispute to drag on till date. The 2nd to 4th Defendants would have helped the matter by showing the limit of Daniel Ekpe’s land purportedly sold by them to the 1st Defendant but they refused and allowed the Claimant and the 1st Defendant to battle over the disputed land till date. Up till date, the 2nd to 4th Defendants have failed, refused and/or neglected to tell the 1st Defendant that the land in disputed was not sold by them to him and does not belong to them and cannot also be the one they purportedly sold to the 1st Defendant. The Claimant pleads and shall rely on the said Arbitration proceedings.
19. The 2nd to 4th Defendants had no right howsoever to sell the Claimant late father’s land to the 1st Defendant.
20. At the trial of this suit, the Claimant shall invoke the latin, “Nemo dat quod non habet”. The 2nd to 4th Defendant could not have sold what did not belong to them.
21. In the year,

2013, the 1st Defendant constructed fence around the disputed land and enclosed in his own compound and put gate to prevent the Claimant from exercising his right to cultivate same. The Claimant applied to Uyo Capital City Development Authority, 10 Esuene Street, Uyo complaining of raising illegal fence on the said land. The U.C.C.D.A. responded by directing the 1st Defendant to stop work on the fence, erection of which he almost completed. The mark, “stop work” still remains on the said fence. The Claimant pleads and shall rely on a letter dated 29th August, 2013 to U.C.C.D.A.
22. The erection of the said fence by the 1st Defendant ceding the disputed land to his compound triggered off yet another suit by the Claimant against the 1st Defendant at Offot District Court, Uyo for the Court to order the 1st Defendant to remove the fence from the disputed land. When the trial was concluded and was ready for judgment, the 1st Defendant vowed that the District Court will not deliver the judgment and the said District Court in Suit No. OFDC/43/2013 transferred the matter to High Court. The Claimant pleads and shall rely on the Certified True Copy of Suit No. OFDC/42 and 43/2013.

I think the learned counsel for the Respondents and the learned trial judge were right to have reasoned that the Appellant’s/Claimant’s cause of action arose in 1997 after the judgment of the Magistrate Court which over turned the 1996 judgment of the District Court and ordered that the parties should maintain status quo.

“Status quo anti-bellum means ‘before the beginning of the war.” In this context, the legal battle started in 1996 as per paragraph 14 of the Appellant’s Statement of Claim. The cause of the ‘war’ in 1996 which made the Appellant to go to the District Court in 1996 was the erection of the Church by the 1st Respondent on the disputed land. The Church remained there since 1996. The learned counsel for the Respondents was right to have said that there is no paragraph of the Appellant’s Statement of claim which averred that the Church which was the cause of “war” in 1996 has been removed. To use the words of the learned counsel for the Appellant in an adverse sense, the Respondents remained in adverse possession of the land in dispute from 1997 to year 2013.

The learned trial judge was thus right to have held that:
“The cause of action in this matter is the alleged trespass by the 1st Defendant in 1996 when he entered the land and built a structure thereon. But we cannot begin to reckon the cause of action from 1996 since the Claimant had gone to Court. The Magistrates’ Court decided the matter in 1997. The cause of action in my view would shift to 1997. Since then the next moment the Claimant went to Court was in 2013. This was 16 years after the decision of the Magistrates’ Court. Section 1 of the Limitation Law, Cap. 78, Laws of Akwa Ibom State Vol. 4, 2000 provides as follows:
No action shall be brought by any person to recover any land after the expiration of ten (10) years from the date of which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

Issue No. 1 is resolved against the Appellant.

Having resolved issue No. 1 which has turned out to be a determinant issue against the Appellant, I do not find it necessary to consider any other issue in this appeal.

The appeal lacks merit and it is accordingly dismissed.
Parties to the appeal are to bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read before now the draft of the judgment just delivered by my learned brother. I agree that the appeal lacks merit and should be dismissed.

For the detailed reasons in the judgment, I too dismiss the appeal.

I abide by all the orders in the judgment including the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I read before now the lead judgment delivered by my learned brother, Mojeed A. Owoade, JCA, and I am in agreement that this appeal has no merit and deserve to be dismissed.
I too dismiss the unmeritorious appeal.

Appearances:

Felix E. Udoh, Esq. For Appellant(s)

Francis Ekanem, Esq. For Respondent(s)