UZOMA & ORS v. ANYANWUOCHA
(2022)LCN/16600(CA)
In the Court of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, May 27, 2022
CA/OW/122/2014
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili JauroJustice of the Court of Appeal
Between
1. SYNOD UZOMA 2. UCHE UZOMA 3. ANDREW DURU APPELANT(S)
And
JONAS ANYANWUOCHA (For Himself And Representing The Entire Members Of Anyanwuocha Family Of Umukaram Amaraku) RESPONDENT(S)
RATIO
THE BURDEN OF PROOF ON A PARTY WHO SETS UP A DEFENCE OF LACHES AND ACQUIESCENCE MUST ESTABLISH
The position of the law is that a party who sets up the defences of laches and acquiescence must establish that the party against who those defences are set up had Notice of what was being done, that he did nothing to prevent it, and that the position of the opposite party, was being altered to his prejudice, or that he had been induced by the other party to spend money. OKEREKE & ANOR V. NWANKWO & ANOR (2003) LPELR-2445 (SC). PER PEMU, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
The law is elementary that an appellate Court should not interfere with the findings of a Court simply because it would have arrived at a different conclusion.
Where an appellate Court finds from the record that evidence was properly evaluated by the trial Court, it has no business to interfere and substitute its own findings and conclusion just to make the difference and exhibit appellate powers. GAJI & ORS VS. PAYE (2003) LPELR-1300 (SC). PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State sitting at Mbano Judicial Division, delivered on the 6th of December, 2013, in Suit No: HME/97/2006.
SYNOPSIS OF FACTS
The Respondent (Claimant in the Court below) had filed a Writ of Summons claiming against the Defendant (Appellants in this appeal) the following:
(i) A Declaration that the Plaintiff is entitled to the Customary Right of Occupancy over the piece or parcel of land known as and called “Ala Ute Akwu” situate at Umudurunze, Umukaram Amato-Amaraku in Isiala Mbano Local Government Area of Imo State.
(ii) N500,000.00 being special and general damages for trespass into the aforesaid land.
(iii) Perpetual injunction restraining the defendants either by themselves or acting through their servants, agents and privies from further trespass into the said “Ala Ute Akwu” land of Plaintiffs.”
Page 2 of the Record of Appeal.
The Respondent, at the trial called two witnesses – CW1 and CW2 respectively and tendered Exhibits A and B.
The Appellants, on their part called two witnesses DW1 and DW2 respectively and tendered three exhibits, C, D, and E.
At the end of the trial, the Court below in delivering its judgment granted claims A and C, while dismissing Claims B.
The Appellants are dissatisfied with the judgment of the Court below and have appealed same by filing an Amended Notice of Appeal with three grounds of Appeal on the 18th of December, 2013, – pages 172–174 of the Record of Appeal.
The Appellants amended their Notice of Appeal filed on the 22nd of February, 2017 encapsulating eleven Grounds of Appeal.
The Appellants filed their briefs of argument on the 31st of October, 2016 (but same was deemed filed on the 7th of February, 2017). This is settled by Chief Enyinna Onwuegbu KSC and E. O. Obichiri Esq.
The Respondent filed his brief of argument on the 30th of January 2019 but same was deemed filed on the 29th of January, 2020. It was settled by Chima Ezike Esq.
The Appellants proffered five (5) issues for determination from the Grounds of Appeal which are:
ISSUES FOR DETERMINATION
(i) Whether the suit of the Respondent was not statute barred. Issue distilled from ground 4 of the amended notice of appeal.
(ii) Whether the Court below was right in granting relief not claimed or asked for, by the respondent. This issue is raised from grounds 7 and 8 of the notice and grounds of appeal.
(iii) Whether the defence of laches and acquiescence has been made out by the appellants against the respondent. This issue is formulated from ground 5 of the notice of appeal.
(iv) Whether the respondent proved the alleged pledge. This issue is formulated from grounds 6 and 10 of the notice and grounds of appeal.
(v) Whether the respondent proved his case to entitle him to the judgment of the Court below. This issue relates grounds 1, 2, 3, 9 and 11 of the grounds of appeal.
The Respondents proffered five (5) issues for determination from the Grounds of Appeal. They are:
(i) Whether the suit of the Respondent was not statute barred (distilled from ground 4 of the amended notice of appeal).
(ii) Whether the Court below was right in granting relief not claimed or asked for by the Respondent (distilled from grounds 7 and 8 of the amended notice of appeal).
(iii) Whether the defence of lashes and acquiescence has been made out by the appellant against the Respondent (distilled from ground 5 of the amended notice of appeal).
(iv) Whether the Respondent proved the alleged pledge (distilled from grounds 2, 6 and 10 of the amended notice of appeal).
(v) Whether the Respondent proved his case which entitled him to the judgment of the Court below (distilled from grounds 1, 3, 9 and 11 of the amended notice of appeal).
On the 28th day of February 2022, the parties adopted their respective briefs of argument.
A cursory look at the issues distilled by the parties, established that the issues for determination proffered by the Respondent is an adoption of that proffered by the Appellants.
I shall therefore consider this appeal based on the Appellants’ issues proffered for determination.
ISSUE NO. 1:
It is the Appellant’s contention that the Court below lacked the jurisdiction to entertain the suit, the subject matter of this appeal as it was statute barred. It therefore contravened the Provisions of Section 15(2) of the Limitation Law of Imo State 1990. That a period of Limitation begins to run from the date in which the cause of action occurred. Submits that in the instant case, the cause of action arose at the very latest in 1978 when late Rufus Duru sold the land in dispute to Ben Nwosu.
That the defendant’s right of action expired in 1990, whereas this suit was instituted in 2006.
That the suit, having been filed outside the 12 years stipulated by the statute of limitation as period to recover land from private individual.
Submits that in determining whether an action is statute barred by the statute of limitation, what the Court will consider in reaching such a decision are:-
(a) The cause of action;
(b) When the cause of action occurred; and
(c) When the action became statute barred.
That if the time contained in the Writ of Summons or statement of claim as the time the cause of action arose is beyond the period allowed by the Limitation Law, the action is statute-barred citing MUHAMMED VS. MILITARY ADMINISTRATOR OF PLATEAU STATE (2001) 16 NWLR (Pt. 740) 570. MILITARY ADMINISTRATOR OF EKITI STATE V. ALADEYELU (2007) 14 NWLR (Pt. 1055) 619, AMUSAN V. OBIDEYI (2005) 14 NWLR (Pt. 945) 322.
That the Respondent in paragraphs 17 and 18 of the Statement of Claim pleaded that Rufus Duru, purportedly sold the land in dispute to Mr. Ben Nwosu.
Submits that, time begins to run with regards to recovery of land from when the adverse grant is made. AJIBONA V. KOLAWOLE (1996) 10 NWLR (Pt. 476) 22 at 36; ELABANJO V. DAWODU (2006) 15 NWLR (Pt. 1001) 76.
That from paragraphs 17 and 18 of the Statement of Claim, it is clear that the Respondent became aware in 1978 when the land was sold and the purchaser surveyed the land citing UBA PLC VS. UMEODUAGU (2004) 13 NWLR (Pt. 890) 35 2 at 369. Paragraphs D–E.
Submits that the in the present case, the Deed of Conveyance was issued to Ben Nwosu in 1978, but the action was filed in 2006. Which was beyond the limitation period.
That by the year 2006 when the Writ of Summons in the case was issued, the Respondents’ cause of action was already statute-barred.
Submits that as at the 6th of December, 2013, the trial Court had no requisite jurisdiction to determine the merit of the Respondents’ case. The judgment was therefore a nullity he submits.
That the purpose of the suit was to recover the land in dispute from the 1st and 2nd Appellants. That however on 17/9/2006, when this suit was filed, no cause of action accrued to the Respondent. The Court below therefore lacked the jurisdiction to hear the suit and grant the reliefs sought by the Respondent. AZUH V. UBN PLC (2014) 11 NWLR (Pt. 580) AT 607 paragraph g–h.
They submit that in the instant case, the reliefs sought in the suit in the Court below and the questions submitted by the Respondent in his Statement of Claim, pertains to an action which was one for recovery of land to which the provisions of Section 15(2) of the Limitation Law of Imo State 2004 apply. ARCHANGA V. AG AKWA IBOM STATE (2015) 6 NWLR (Pt. 1454) 1 at 56.
Urges this Honourable Court to resolve this issue in favour of the Appellants and allow the appeal.
ISSUE NO. 2.
Submits that Court is not competent to make a case for any of the parties before it. That it would be against all principles of fair trial to do so.
That in this case, the Court below granted reliefs not claimed nor were they consequential or incidental to the claim before the Court. He submits that a consequential order must be incidental to or flow directly and naturally from reliefs claimed, citing ODOFIN V. AGU (1992) 3 NWLR (Pt. 229) at 350.
That in this case, the Court below granted reliefs A and C., and dismissed B as not established. But however, granted reliefs that had no bearing with the main claim of the Respondent.
The claim of the Respondent touches on declaration of title to the land in dispute. But he never asked for redemption of pledged land.
The Court below ordered that the Claimant shall pay the 3rd and 4th Respondents the equivalent of five Shillings and redeem the land. But this amount was not claimed.
That the Court was ready to award or order the payment of specific amount of money as a consequential order when there is no evidence to support the sum. Urges Court to hold that the award by the Court below was unsolicited.
ISSUE NO. 3:
That in 1978, the land in dispute was sold to the father of the first and second Appellant by the 3rd Appellant’s late father.
Between 1978–1985, the land was developed with permanent buildings and hospital being in use since then to date.
In 2006, the Respondent brought this suit for declaration of title to land, damages and perpetual injunction.
Submits that the Respondent is estopped from asserting his supposed right over the land in dispute, because he is caught by the doctrine of laches and acquiesce.
When, the Respondent acquired knowledge of the sale of the land in dispute by the 3rd Appellants’ father, and he fails to assert his title, he has lost his right to recover possession. That from 1978–2006 when the Respondent belatedly sued the Appellants’, the 1st and 2nd Appellants had altered the nature and their possession of the land by building on it.
That the Respondent did nothing for 25 years to upset the sale and development. Therefore the Respondent is estopped by laches and acquiescence – KIADA V. MORAYO (1940) 15 N.L.R 131. Submits that the Court would not allow the owner to take the improvement and cheat the other man of money he has expended having knowledge of the trespass activities on the land.
ISSUE NO. 4
Submits that in this case, the Plaintiff (Respondent in this present appeal) claim is for declaration of title, damages and injunction over the land in dispute but not for redemption or an order of Court compelling the appellant to accept any redemption money. That in an action for redemption of pledge it is the first duty of the party alleging to prove the pledge. It is the cardinal principle of Igbo native law and custom that land deals are not done in secret. Therefore to prove a pledge, there must be some convincing evidence of those who witnessed the pledge. That this requirement was not met in this instant case.
That the witnesses who witnessed the transaction has been claimed by the claimant to the transaction Mrs. Nwauwa Duru was still alive but was not called. That if she had been called, her testimony would have been unfavourable to the claimant cites OGBONNA V. OGBUJI (2014) 6 NWLR (PT.1403)205 (CA).
That in proving the pledge the respondent must prove the time, amount, place and some reasons for the pledge and the name of the pledge land.
That the respondent when being cross-examined in the Court below admitted not having knowledge of the pledge. That clearly, the Respondent both in the statement of claim and evidence did not prove the time, place and reasons for the pledge. OKOIKO V. ESEDALUE & ANOR. (1974) 3 SC 15 @ 31.
That Exhibit ‘B’ the customary Arbitration fell short of a proper customary arbitration for it to be valid. That a valid customary arbitration must have the following (a) voluntary submission of the dispute to the arbitration of the individual or body; (b) agreement by parties expressly or by implication that the decision of the arbitration would be accepted and binding. (c) That the arbitration was in accordance with the customs of the parties. (d) That the arbitration reached a decision and published their award.
That the ward was not signed by one of the parties, but thumb printed and that there was no illiterate jurat. That Exhibit ‘B’ did not pass the test of customary arbitration.
ISSUE NO. 5
He submits that the Respondent failed to prove his case to entitle him to the claims granted in his favour. That a plaintiff who claims ownership of land through inheritance must plead and give evidence of the person who held title or on whom title devolved in respect of the land before the plaintiff took control.
That the pleadings and evidence as regards inheritance from Alinonu to the respondent has no bearing in this case. That by the statement of claim the genealogy of the ancestor of the respondent stopped at Ayanwuocha the grandfather of the Respondent. He did not show any descendant from Ayanwuocha to the respondent.
That the consequence of not establishing a link or descendant and from Ayanwuocha to the present Respondent was that he has failed to establish the link to the land in dispute.
That the Court below erred when it held that the land in dispute belong to the claimant.
Submit that there was no attempt by the Respondent to establish any particulars of the intervening events on the land through him to claim title.
RESOLUTION OF ISSUES
ISSUES NO. 1
The suit the subject matter of this appeal, evidentially has to do with the issue of PLEDGE. Exhibit ‘B’ is a decision of a customary arbitration which was evidence that the land, the subject, matter of this appeal was pledged by one Enyidiye to one Esther Duru for the sum of Ukwu Ihe Isi (five shillings) Esther Duru is the grand-mother of the third Appellant. The plaintiff (Respondent) is the great grandson of the pledgor and it was he who instituted the suit at the Customary Arbitration.
Therefore the matter did not have to do with customary sale of land.
From the statement of claim, there is no specific years as to when the cause of action arose. In paragraphs 12,13,14,15, 16 and 17 of the statement of claim, the claimant had averred that the land transaction was a pledge. The defendant denied paragraph 11,13,14,15,16 and 17. But paragraph 12 of the statement of claim was not denied. The result is that the paragraphs are therefore deemed admitted. For purposes of elucidation, I shall reproduce the facts in paragraph 12 of the statement of claim.
“The plaintiff further asserts that after the death of Ayanwuocha, his wife called Enyidiya Anyanwuocha pledge the land in dispute to her friend Esther Duru for the sum of Ukwu Ihi Ise (five shillings). This pledge transaction was witnessed by some persons including Mrs. Nwouwa Duru and Okoro Duru”
The law is well settled, that facts not denied are deemed admitted. CBN V. INTERSTELLA COMMUNICATIONS LTD & ORS (2017) LPELR-43940 (SC).
From the Appellants’ brief paragraph 2:03 thereof, he is arguing that the cause of action arose in 1978, when the Respondent became aware that the land was sold. He argues that to bring the action in 2006, the action is statute-barred.
In deciding whether a suit is statute-barred or not, the Court looks at the statement of claim and nothing else. But from the statement of claim, there is no mention of when the land was sold. The Court cannot speculate.
Again, since the Respondent avers that the suit is predicated on a pledge (a fact not denied by the Appellants) the issue of statute bar cannot apply.
Therefore there is nothing to indicate that the suit, the subject matter of this appeal is statute-barred. This issue is resolved in favour of the Respondent.
ISSUES NO. 2
The Court below had decided that the Respondent should redeem the land.
The claim of the Respondent (claimant in the Court below) was for declaration that he is entitled to the customary right of occupancy over a piece of land known as and called Ala-Ute-Akwu page 2 of the Record of Appeal. But the Court below granted reliefs (a) & (c) – page 171 of the Record of Appeal Relief (c) says that the 3rd and 4th defendants should allow the claimant redeem the land. The Court also held that the evidence that “Ukwu Ihe Ise” was then five shillings. That the claimant (Respondent in this appeal) should pay the 3rd and 4th defendant the equivalent of five shillings and redeem the land.
In the present case, the Court below found out from the facts and evidence that there was a pledge.
He had a right to order that the pledge be redeemed. It is a misconception to contend that the Court granted a relief not claimed.
The issue is resolved against the Appellants and in favour of the Respondent.
ISSUES NO. 3
In paragraph 4.02 of the Appellants’ brief, he had argued that the land in dispute was sold to the father of the 1st and 2nd Appellant by the 3rd Appellant’s father in 1978. That between 1978-1982, the land had been developed with permanent building and hospital before the Respondent brought the suit in 2006.
The claimant (Respondent in this appeal) had stated that he knew that the Appellants were building on the land, but that for fear of being hurt, he could not intervene,
Under cross-examination, the Respondent testified that he knows that the 1st and 2nd Defendants had built structures on the land and that there was hospital, doctors quarters and nurses’ quarters.
The maxim ‘delay defeats equity’ is one from which laches and acquiescence is derived, as equity aids the vigilant.
The position of the law is that a party who sets up the defences of laches and acquiescence must establish that the party against who those defences are set up had Notice of what was being done, that he did nothing to prevent it, and that the position of the opposite party, was being altered to his prejudice, or that he had been induced by the other party to spend money. OKEREKE & ANOR V. NWANKWO & ANOR (2003) LPELR-2445 (SC).
A cursory look at Para 18 of the claimant’s statement of claim, the claimant averred thus
“Thereafter, Mr. Ben Nwosu surveyed the land in dispute but the plaintiff intervened and removed the survey beacons, the said Ben Nwosu hired some thugs whom he stationed permanently on the land in dispute while construction work was going on and thus continued till he completed the house”
In reply to Para.18 of the statement of claim the defendants now Appellants in their amended statement of defence stated in paras 21-22 thus:
21 “The 1st and 2nd defendants aver that they could not have stationed thugs on the land for those period of five years when the security agents and law Courts are there.
21 Rather, it was the late father of the 1st and 2nd defendants who complained of the attempt by the Plaintiff to trespass into his land by use of thugs and the police arrested them.”
From the averments above, it is my view that the Respondent did not stand by but challenged the Appellants’ father; he cannot therefore be said to have slept on his right.
This issue is resolved in favour of the Respondent and against the Appellants.
ISSUES NO. 4
By ‘Exhibit B’, the customary arbitration it is apparent that the Respondent proved that there was a pledge and same was admitted by the Appellants in his failure to deny paragraph 12 of the statement of claim. Facts not denied are deemed admitted.
This issues is resolved in favour of the Respondent and against the Appellants.
ISSUES NO. 5
The Respondent, in all its ramifications proved his case on a preponderance of evidence to the satisfaction of the Court below. The Court below, having the advantage of seeing and hearing the witnesses, and in view of the evidence before him (both oral and documentary) and in the absence of any perversity in the evaluation of the evidence.
The law is elementary that an appellate Court should not interfere with the findings of a Court simply because it would have arrived at a different conclusion.
Where an appellate Court finds from the record that evidence was properly evaluated by the trial Court, it has no business to interfere and substitute its own findings and conclusion just to make the difference and exhibit appellate powers. GAJI & ORS VS. PAYE (2003) LPELR-1300 (SC).
I am of the view that the Court below assiduously evaluated the evidence as he did in arriving at a just conclusion and this Honourable Court has no business interfering with same.
This issue is resolved in favour of the Respondent and against the Appellants.
The appeal fails and same is hereby dismissed.
The decision of the High Court of justice of Imo State, Mbano Judicial Division, delivered on the 6th day of December 2013 in Suit No. HME/97/2006 is hereby affirmed.
N100,000 costs in favour of the Respondent.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where the facts and issues in contention have been well encapsulated. I am in agreement with my learned brother’s reasoning and conclusions and also dismiss the appeal as having no merit.
The decision of the lower Court is accordingly affirmed, with the costs as awarded.
IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother RITA N. PEMU, JCA. I subscribe to the reasoning and conclusion of his Lordship that the appeal lacks merit. Same is dismissed.
I abide by the cost awarded.
Appearances:
Appellants, absent and unrepresented For Appellant(s)
D.C. Ebere, Esq. For Respondent(s)
