EQUERE MBAT UKPE V. THE REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH OF NIGERIA & ANOR
(2012)LCN/5593(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of July, 2012
CA/C/191/2009
RATIO
TORT: FINDER’S RIGHT
”In the Winkfield (1900-1903) All E.R. Rep. 346 cited in “A Casebook on Tort,” 3rd edition by Tony Weir page 551 Collins M.R. held thus: “It cannot be denied that since the case of Armory vs. Delamirie (1722) 1 Stra. 504; 93 E.R. 664), not to mention earlier cases from the Year Books onward, a mere finder may recover against a wrongdoer the full value of the thing converted. That decision involves the principle that as between possessor and wrongdoer the presumption of law is, in the words of Lord Campbell in Jeffries vs. Great western Ry. (1856) 5 E & B. 802, 806; 119 ER. 680), “that the person who has possession has the property.” In the same case he says: “I am of opinion that the law is that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrongdoer, and cannot defend himself by showing that there was title in some third person, for against a wrongdoer possession is title. The law is so stated by the very learned annotator in his note to Wilbraham vs. Snow” (1670) 2 WMS. Saund 47f. 85 ER. 624). Therefore it is not open to the defendant being a wrongdoer, to inquire into the nature or limitation of the possessor’s right, and unless it is competent for him to do so the question of his relation to, or liability towards, the true owner cannot come into the discussion at all; and, therefore, as between those two parties full damage have to be paid without any further inquiry. The extent of the liability of the finder to the true owner not being relevant to the discussion between him and the wrongdoer, the facts which would ascertain it would not have been admissible in evidence, and therefore the right of the finder to recover full damages cannot be made to depend upon the extent of his liability over to the true owner. To hold otherwise would it seems to me, be in effect to permit a wrongdoer to set up a jus tertii under which he cannot claim.” Per TUR, J.C.A
APPEAL: ISSUE FOR DETERMINATION: WHETHER THE NUMBER ISSUES FOR DETERMINATION CAN EXCEED THE NUMBER OF GROUNDS OF APPEAL
”..it is settled by the Supreme Court in a plethora of authorities that the issues for determination should not exceed the number of grounds of appeal. An issue for determination may encompass several grounds of appeal but not the other way round. See Saude v. Abdullahi (1989) 7 SCNJ 216; Eze v. FRN (1987) 1 NWLR (Pt.51) 506 at 521-522; Okpala v. Ibeme (1989) 3 SCNJ 152 at 159 and Kalu v. Odili (1992) 6 SCNJ (Pt.1) 76 at 93.” Per TUR, J.C.A
INTERPRETATION OF STATUTES: THE PURPOSE OF A PROVISO IN A STATUTE
”The purpose of a proviso is to cut down or qualify something which has gone before, usually called the enacting clause. See Anya & ors. V. State (1965) NWLR 62 at 64 and Nabham V. Nabham (1967) NMLR 130 at 135. The main part of a section of a statute or rule of court is not to be construed so as to render the proviso redundant. See R. v. Leeds Prison (Governor) Exp. Stafford (1964) 2 Q.B. 625. In LlyodS & Scottish Finance, Ltd. vs. Modern Cars & Caravans (Kingston) Ltd. (1966) 1 Q.B. 764 Edmund Davies J. (as he then was) held that a proviso is “…of necessity …limited in its operation to the ambit the section which it qualifies.” In Attorney General vs. Chelsea Waterworks Co. (1731) Fitz 195 it was held that “…it speaks the intention of the makers.” Per TUR, J.C.A.
LAND LAW: TRESPASS: WHETHER A TRESPASSER CAN ACQUIRE THE TITLE OF THE TRUE OWNER
”A trespasser cannot acquire the title of the true owner of the land merely by his long acts of trespass or possession. See Ojomu v. Ajao (1993) 9 SC 22/30; Onwujuba v. Obienu (1991) 1 SCNJ 40.” Per TUR, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
EQUERE MBAT UKPE – Appellant(s)
AND
1. THE REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH OF NIGERIA
(Suing by Attorney Elder Obo Archibong)
2. SUNDAY UNAOWO – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The Registered Trustees of the Apostolic Church (1st Respondent) by her Attorney Elder Obo Archibong sued the appellant and the 2nd Respondent before the High Court of Justice, Calabar, Cross River State claiming they were trespassers on their land situate at No.38 Odukpani Road, Diamond Hill, Calabar, Cross River State. Having heard evidence Hon. Justice E.E. Ita entered judgment in favour of the Registered Trustees of the Apostolic Church on 6th July, 2009 in suit No. HC/381/2008.
The facts upon which No.38 Odukpani Road was contested in the trial court are as follows: The 1st Respondent’s pleading and evidence in the trial Court was that late Madam Mary Eyo Ekpo derived title to the bungalow by lease from the Board of Trustees of the Presbyterian Church of Nigeria Ishie. Before her death she sold the property to the Registered Trustees of the Apostolic church as pleaded in paragraphs 5-8 of the statement of claim to wit:
“5. The land in question comprising double plot originally belonged to the Board of Trustees of the Presbyterian Church of Nigeria Ishie Parish, who leased it to Late Madam Mary Eyo Ekpo as evidence in their demand notice for rent payment and subsequent letter of Late Madam Mary Eyo 18th September, 1990 to Barrister Eyo Ekanem Solicitors to the Presbyterian Church of Nigeria Ishie Parish.
6. The claimant avers that on the 4th October, 1989 they wrote to late Madam Mary Eyo Ekpo to purchase/lease her land and permanent building covered by a Certificate of Occupancy No.CA/2288/84 dated 30-03-1984.
7. After a series of negotiation half of the plot excluding the other half with the permanent building (Bungalow) but including temporary structures bars of galvanized iron sheet was sold to the claimant for N16, 000.00 (Sixteen thousand Naira) only on the 01-03-1991 and evidence by an agreement.
8. Upon a further series of negotiation as contained in paragraph (6) of the 10-03-1991 agreement, the permanent building (Bungalow) and half plot was sold to the claimant for another N16, 000.00 (sixteen thousand naira) only. This was evidence in an agreement dated the 30-08-1991.”
Being childless, the church permitted her to continue living in the land and be collecting rent for her upkeep until her death. It was further agreed that when Madam Mary Ekpo died she would be buried within the premises of the land in dispute. Madam Mary Eyo Ekpo died childless on 08-01-1994 and was buried on the disputed land. After burial her sister by name Mrs. Iniko Comfort C. Ekpo Kennedy applied for Letters of Administration to administer the deceased’s property which included No.38 Odukpani Road, Diamond Hill, Calabar. Mrs. Iniko comfort Eyo Eyo Paul (wife of 1st defendant/appellant) entered a caveat. After a hearing the probate court issued Letters of Administration to Mrs. Iniko Comfort C. Ekpo Kennedy who handed over the bungalow and half plot to the claimant via an agreement dated 1st July, 2002. Nevertheless Mr. Equere Mbat Ukpe (2nd defendant/appellant) who had been living on the land would not give up possession to the claimant/1st Respondent. The Registered Trustees instituted this suit and Pleaded as follows:
“27. All effort made by the claimant to recover possession of the building has proved abortive short of using force.
28. The various suits brought by the claimant has been frustrated by the 2nd defendant one way or another.
29. Access to the church is through the permanent building (Bungalow), and the continuous illegal occupation by the 2nd defendant has caused the claimant undue stress, expense and disturbing the claimant’s religious activities.
30. Whereof the claimant has suffered damages and claims against the defendants jointly and severally as follows:
(i) A declaration that the claimant is entitled to the statutory right of occupancy over a piece of land and property known and situate at No.38 Odukpani Road, Diamond Hill Calabar.
(ii) An order compelling the defendants to hand over possession of the said property (bungalow) described in paragraph (i) here of to the claimant within seventy-two (72) hours of the delivery of judgment in this case.
(iii) An order of perpetual injunction restraining the defendant, jointly and severally either by themselves, their servants, agents, workmen, hireling and or privies in whatever guise from intermeddling, interfering and or obstructing the claimant from exercising her right of ownership of their property.
(iv) General damages of N5 million.”
The judgment favoured the claimant/1st Respondent.
The Notice of Appeal filed on behalf of the appellant on 08-07-2009 contains six (6) grounds. Godwin U. Oyong Esq. filed a brief of argument on behalf of the appellant on 20-06-2011. This was deemed properly filed and served on 28-06-2011. Though served hearing notice the appellant and his learned Counsel were absent when the appeal came up for hearing on 8th February, 2012. The Appellant’s brief was deemed adopted. Six (6) grounds of appeal were filed but learned Counsel formulated Seven (7) issues for determination as follows;
“1. Whether the trial High Court had jurisdiction to continue with the trial of the case when it became clear that the trial claimant/1st Respondent failed to prove that it was a juristic person and had no capacity to sue or put differently when it failed to decide on the question if it had jurisdiction when there was no Competent party before it?
2. Whether an un-incorporated body or a single member of an un-incorporated Association on his own without a resolution of its several members can appoint an Attorney to act on its behalf and specifically take out a writ of summons to commence legal proceedings on behalf of the unregistered trustees or can an Attorney appointed by a single member of Board of Trustees without the constitution of the Association or body dabble into the church property or act or its behalf.
3. In the light of the fact that the proper person known to law prosecuting the case as a claimant was the Court Right in giving judgment to a non-juristic person by making a declaration in its favour and awarding damages?
4. Whether suit No. HC/381/2008 was rendered statute barred by the Cross River State statute of Limitation (Part 1 and 2) of 1991.
5. Whether the trial constituted HC/381/2008 afforded the appellant a fair hearing in accordance with the doctrine of natural justice, fair play and pursuant to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended, when Appellant/Defendant though filed and before the Court was not considered and appellants denied adjournment to prepared his defence.
6. Whether the trial judge was right in law to have awarded N100, 000.00 damages against 2nd defendant/Appellant when the 1st Respondent led no evidence in proof of same or in proof of ownership of the portion of land and bungalow occupied by the 2nd defendant/Appellant.
7. Whether there was proof of the area of land in dispute by the claimant when the plan and certificate of occupancy which the deceased owner Mary Eyo Ekpo was not produced.”
The brief of the Registered Trustees was filed on 29-07-2011 and adopted on 08-02-2012. Five issues for determination were set down for determination as follows:
“1. Whether the 1st Respondent could not be said to be a juristic person and had the capacity to sue and be sued, when it instituted the suit at the lower Court and judgment properly entered in its favour? (Distilled from issue No.1 and Ground 1).
2. Whether the Attorney was not properly appointed and clothed with powers to institute the suit on behalf of the 1st Respondent (the Apostolic Church of Nigeria)? (Distilled from issue No. 2 and Ground 3).
3. Whether the suit as constituted before the lower Court was statute barred under the Statute of Limitation of Cross River 1991? (Distilled from issue No. 4 and Ground 2).
4. Whether the Appellant was not given fair-hearing, when instead of filing a statement of defence and calling witnesses, when he had opportunities to do, elected to rely on the case of the 1st Respondent and then only cross- examined its lone witness and finally addressed the court? Distilled from issue No.5 and Ground 5).
5. Whether the 1st Respondent could not be said to be entitled to the award of damages to the tune of N100, 000.00 for the trespass occasioned on the land and building by the Appellant? Distilled from issue No.6 and Ground 6).”
The appeal was heard on 8th February, 2012 and adjourned for judgment when it was discovered that the Registry of the lower Court had not transmitted the documentary exhibits along with the records to the Court of Appeal. This Court directed that the exhibits should be forwarded to this Court and the appeal be re-opened for hearing. The Court further directed that fresh hearing notice be issued to the parties/Counsel.
On 2nd July, 2012 G.O. Oyong Esq. appeared for the appellant. James Ibor represented the 1st Respondent. The 2nd Respondent had not been served hence the appeal was adjourned to 4th July, 2012 for hearing. The return was that there was nobody at the 2nd Respondent’s residence on whom service could be effected notwithstanding that the bailiff had visited the residence on 2nd and 3rd July, 2012 considering the fact that the 2nd Respondent did not appear before the trial court nor file any statement of Defence nor Brief of argument in this court, it was decided to proceed with argument in this appeal. Meanwhile Mr. Oyong Esq. had filed an application on 5th June, 2012 seeking leave to file a Reply Brief and a deeming order. The application supported by affidavit was heard and granted on 4th July, 2012. Appellant’s Brief filed on 20th June, 2012 and the Reply brief of 4th June, 2012 were re-adopted in argument the same day. Mr. Ibor Esq. of Counsel also readopted Respondent’s brief filed on 29th July, 2011. Judgment was reserved.
OBJECTION
Learned counsel to the Registered Trustees took objection to issues 3 and 7 for determination, the argument being that issue 3 and 1 emanated from ground 1 of the Notice of Appeal. It was therefore improper to formulate two issues out .of a ground of appeal, citing Adele Eke v. Ogbonda (2007) 1 MJSC 160-164 holden 6; Anaeze v. Anyaso (1993) 5 NWLR (Pt .291) 1; Buraimoh Bamgbose (1989) 3 NWLR (Pt.109) 352; Utih V. Onoyiuwe (1991) 1 NWLR (pt.166); Oyekan v. Akinrinwa (1996) 7 NWLR (pt.459) 128 and Yusuf v. Akindipe (2000) 8 NWLR (Pt.669) 376.
Counsel argued that issue seven was not supported by any ground of appeal. Counsel cited Ogunde v. Oshunkeye (2007)12 MJSC157 at 165; Nfor v. Ashaka Cements Co. Ltd. (1994) 1 NWLR (pt.319) 222; University Trust Bank Ltd. v. Dolmetsch pharmacy (Nig.) Ltd. (2007) 8 MJSC 1 at 12. Issues must flow from the grounds of appeal. Reference was made to Ogit v. SC Nig. Ltd. (2007) 9 MJSC 90. That issue 3 and 7 should be struck out.
On the objections raised by the learned counsel to the 1st Respondent learned Counsel to the appellant submitted in the Reply brief that the 1st Respondent did not file nor serve any notice of preliminary objection pursuant to order 10 rule 1 of the court of Appeal Rules, 2011 nor cross-appeal. The objection had nothing to stand upon. That ground 3 in the Notice of Appeal relates to the issue of jurisdiction and issue No.3 jointly argued with issue 2 was neatly distilled from ground 3 of the Notice of Appeal. Issue 7 is not separate but is part of issue 6.
Though Mr. M.N.I. Emori Esq. for the Registered Trustees did not file a motion to raise the preliminary objection at the hearing as stipulated under Order 18 rule 5 of the court of Appeal Rules, 2011, it is settled by the Supreme Court in a plethora of authorities that the issues for determination should not exceed the number of grounds of appeal. An issue for determination may encompass several grounds of appeal but not the other way round. See Saude v. Abdullahi (1989) 7 SCNJ 216; Eze v. FRN (1987) 1 NWLR (Pt.51) 506 at 521-522; Okpala v. Ibeme (1989) 3 SCNJ 152 at 159 and Kalu v. Odili (1992) 6 SCNJ (Pt.1) 76 at 93.
Issue 3 is a replication of issue 1. Both relate to ground 1 in the Notice of Appeal. Accordingly, issue 1 and 3 having been formulated from Ground one are struck out as incompetent. Issue 7 is clearly set out and complains of the identity of the land in dispute. This is not linked to any ground in the Notice of Appeal. Issue six and seven were also separately argued in appellant’s brief of argument issue seven is not a part of issue six as argued by the learned counsel to the appellant. Accordingly issue seven is also struck out. Furthermore, the learned Counsel to the appellant conceded in the Reply brief to have argued issue two and three together under Ground 3. Having struck out issue three so goes issue two since twins and inseparable. We are thus left with issues four, five and six in the appellant’s brief.
APPELLANT’S ARGUMENTS:
ISSUE FOUR:
On issue four the learned counsel to the appellant submitted that the suit was caught by the Limitation Law of cross River state in that Madam Mary Eyo Ekpo died on 8th January, 1994 while the suit was instituted on 21st November, 2008 fourteen years and eleven months thereafter. By the Limitation Law the period for instituting the claim is ten years from the death of the owner of the estate. Learned Counsel argued that this Court had no jurisdiction to entertain the claim, citing Madukolu v. Nkemdilim (1962) 1 SCNLR 242 and Sosan v. Adenigwe (1986) 3 NWLR (pt. 27) 201 at 207; Okoroafor V. The Misc. Offences Tribunal (1995) 4 NWLR (Pt. 387) 51; Akanbi v. Military Governor of Ondo State (1990) 3 NWLR (Pt.135) 102 and Okoye v. NLFC (1991) NWLR (pt.199) 806. That the claim being statute barred should be struck out by this Court.
ISSUE FIVE:
Learned counsel argued that there was a total breach of the Rules of the High Court, 2008 particularly Order 20 in that any non-compliance with the Rules should be treated by the court as an irregularity and not a ground for nullifying the proceedings, citing international Polymera Systems Ltd. v. Glover & Anor. (2002) FWLR (Pt.86) 605 at 612 and Okoye v. Nigeria construction and Furniture Coy. Ltd. (1991) 6 NWLR (Pt. 199) 501. Learned Counsel referred to the case of F & B International Bank Ltd. vs. Imano Nigerian Ltd. & Anor. (2000) FWLR (Pt.19) 392 at 395 as authority that since the appellant had filed an application for extension of time to put in a memo and statement of Defence the learned trial Judge should have determined if there was a good defence to the claim. But when the application was struck out this was in breach of the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. This is because the appellant had explained why he did not pay fees due to the strike by Judicial Staff nationwide. There was a further miscarriage of justice when the trial Judge would not grant the application for adjournment on 20th February, 2009. This denied the appellant the opportunity of putting forth his defence. It was equally wrong to force the appellant’s Counsel to Cross-examine PW1 on the 20th February, 2009 when counsel was not prepared for the hearing.
ISSUE SIX:
Appellant’s learned counsel’s submission on issue six was that the 1st Respondent did not prove the claim and was not entitled to judgment, citing Elema v. Akenzua (2000) 19 NWLR (pt.534) at 535. That Exhibit “3” did not convey title to the claimant. Exhibit “7” was executed on 7th October, 2002 by the Attorney who got a single individual to give him authority to act as a trustee of the Church whilst he was an ordinary Elder of the Church. Having not been able to prove the claim there was no basis for the declaration and award of damages to a non-juristic person as the judgment was void. Learned Counsel urged that this appeal should be allowed.
1ST RESPONDENT’S ARGUMENT
Since issues 1, 2, 3 and 7 in the appellant’s brief have been struck out I shall also limit myself to issues four and five in the Respondent’s brief of argument as relevant and germane to this appeal.
ISSUE FOUR:
Learned counsel’s argument was that the appellant was given fair hearing at the trial. The processes were served on the appellant on 24th November, 2008. The appellant had eight days to have entered a memorandum of appearance which he did not. However, by virtue of order 13 rule 5 of the High Court (Civil Procedure) Rules, 2008 the appellant had the opportunity to file the memo outside the eight days stipulated by the Rules subject to payment of N200.00 per day of default. Again upon being served the statement of claim on 24th November, 2008 the appellant had 14 days to have filed a statement of Defence under order 17 rule 21(2) of the Rules supra. Yet, the appellant did not do so. However, under order 5 rule 4 of the same Rules the appellant could have applied for extension of time to file his statement of defence subject to the payment of N200.00 per each day of default.
The trial Judge was satisfied that the appellant was served the processes on 24th November, 2008. On 3rd February, 2009 when the matter came up for hearing the learned counsel to the 1st Respondent applied for judgment in default of a memo and statement of Defence. The application was turned down and the matter adjourned to 20th February, 2009 for hearing. The learned trial Judge had in the course of adjournment directed fresh hearing notices to be served on the appellant. Yet the appellant would not file a memo or statement of Defence an application for extension of time for that purpose. The appellant appeared with his learned counsel on 20th February, 2009 on the day fixed for hearing without anything by way of motion for extension of time. The learned counsel asked for adjournment his reason being that he became aware of the hearing notice only on 19th February, 2009. Counsel informed the court he was briefed after the JUSUN strike hence the need for an adjournment. The learned trial Judge turned down the application because there was no memo of appearance and statement of Defence. At that stage his Lordship proceeded to hear the only witness called by the 1st Respondent. The learned Counsel to the appellant participated in the proceedings and objected to the admissibility of certain documentary exhibits tendered by Pw1. Counsel also cross examined Pw1 on 20th February, 2009 and 16th March, 2009. Thereafter the 1st Respondent closed the case. The matter was adjourned to 7th April, 2009 for defence. Only then did the appellant file a motion on 16th March, 2009 seeking extension of time to file a memo and statement of Defence which had been prepared since 23rd February, 2009 as the date showed on the face of the motion. This was without paying the stipulated penalty of N200.00 per each day of default. Again the statement of Defence had no witnesses’ written statement on oath, list of documents and witnesses to be relied upon at the trial as stipulated under Order 17 rule 21(1) of the Rules supra.
Learned Counsel to the 1st Respondent drew this Court’s attention to the fact that the case suffered series of adjournments until the application was struck out on 25th May, 2009. Since there was no statement of defence and no evidence was called by the appellant the learned trial Judge rightly called for written addresses from Counsel. Reference was made to Order 30 rules 13 and 14 of the Rules supra. Counsel to the appellant raised six issues which were argued in the written address. For all these reasons it was submitted that the appellant had all the opportunity to have joined issues with the 1st Respondent at the trial Court but did not do so. Besides, Counsel to the appellant rested his case on that of the 1st Respondent. Counsel cited Johason Triangle Ltd. v. Charles Moh & Partners Ltd. (1999) NWLR (pt. 588) 555 at 568-569; Adele Eke v. Ogbonda (2007) 1 MJSC 160 at 181; Bill Construction Co. Ltd. v. Imani & Sons Ltd. (2007) 5 MJSC 217 at 225; Newswatch Communication Ltd. v. Atta (2006) 12 NWLR (pt.993) 1; Amanchukwu v. The FRN (2007) All FWLR (pt.380) 1578 at 1589; Maritime Academy of Nigeria v. Associated Quantity Surveyors (2008) All FWLR (pt. 406) 1872 at 1898; Okeke v. Pet mag Nig. Ltd. (2005) All FWLR (pt.263) 760 at 777 paragraphs “A-B” as holding that a defendant cannot be forced to defend a suit. The option not to defend may be part of the strategy adopted to defeat the claim which may boomerang. Where that happens the party cannot be heard to complain on appeal that the principle of audi alteram partem had been breached. That the appellant had more than four months to have filed a memo and statement of defence.
After bungling all opportunities afforded the appellant by the Court and not complying with the Rules, the same appellant cannot be heard to argue that fair hearing had been breached.
ISSUE FIVE:
Learned counsel submitted that having regard to the exhibits admitted before the trial court without a single exhibit from the appellant and considering the evidence on record the 1st Respondent had proved title to the bungalow and was entitled to damages, citing Moshood v. Bayero (2001) 52 WRN 42 at 58-59. That appellant’s stay at No.38 Old Odukpani Road Calabar no matter how long did not ripen into acts of ownership. Learned Counsel referred to the findings of the learned trial Judge to argue that the appeal be dismissed.
APPELLANT’S REPLY BRIEF
While the appellant’s brief contained twenty three pages the Reply brief has thirty pages. Order 18 rule 5 of the Court of Appeal Rules, 2011 provides that the appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve or cause to be served a reply brief which shall deal with all new points arising from the Respondent’s brief.
Learned Counsel’s argument on issue four in the Reply brief was that the appellant was not accorded a fair hearing. That the learned trial Judge became a revenue collector rather than a court established by the Constitution of the Federal Republic of Nigeria, 1999 as altered, to do justice to all manner of persons. That the courts of justice are not revenue collectors. The failure of the trial Judge to consider the application for extension of time to file a defence constituted a breach of fair hearing under section 36(1) of the constitution supra, citing, Mobil Nigeria Plc v. Ezekiel shut Pam (2000) 5 NWLR (Pt.657) 506 at 512.
It was further submitted that 20th February, 2009 was the first time learned counsel represented the appellant in court. That the issue of service of the originating summons on 24th November, 2008 was in doubt. It was the duty of the learned trial Judge to have investigated if in actual fact the originating processes and hearing notices had been served on the appellant. By refusing an adjournment and proceeding with the hearing without caring about the plight of the appellant and forcing Counsel to cross examine Pw1; this rendered the court room hostile and un-conducive to fair hearing. Learned counsel cited Adeleke v. Ogbonda (2007) 1 MJSC 160 at 181 and Mobil Nig. Plc v. Pam (2000) 5 NWLR (Pt.657) 513.
Counsel further submitted that it was the duty of the 1st Respondent to prove that the appellant had been served the processes on 24th November, 2008 and hearing notice but refused to appear in court nor that the judicial staff were not on strike nationwide between November, 2008 to January, 2009. The striking out of appellant’s motion for extension of time on 25th May, 2009 was a speculative act which the Courts ought not to embark upon. Counsel argued that the affidavit of service supposedly filed by the bailiffs in the Court below is not part of the records of appeal; it was not seen during the process of settling the records. The appellant’s learned Counsel could not understand how the Court and 1st Respondent arrived at 24th November, 2008 as the date the appellant was served with the writ of summons/statement of claim. That only if the affidavit of service were available would it be taken as prima facie proof of service? Counsel referred to the authority of NIPSS vs. Kraus Thompson Organization Ltd. (2001) NWLR (Pt.45) 702 and UBA Plc v. Tsokwa Motors (Nig.) Ltd. (2000) FWLR (Pt.22) 1057 at 1060. Learned counsel urged the court to hold that there was no fair hearing and to set aside the judgment of the trial Court.
Counsel’s argument on issue six in the Reply brief was that the evidence led by the 1st Respondent was at variance with the pleadings. Without proof of ownership of the bungalow the 1st Respondent was not entitled to damages. The Court should not have ordered the appellant to be thrown out of the house in dispute. Counsel cited Seismograph Services (Nig.) Ltd. v. Chief Eyuafe SC/324/1973 delivered on 8th October, 1976 at page 13; Nigeria Airways Ltd. v. Ahmadi (1991) 6 NWLR (Pt.198) 492 at 494 and order 27 rule 8 of the High Court (Civil Procedure) Rules.
REASONS FOR JUDGMENT:
ISSUE FOUR:
The appellant did not file a statement of defence in the trial court. In Egesimba v. Onusuruike (2002) FWLR (Pt.128) 1227 at 1408 the Court held that:
“Where the only pleading filed is the statement of claim, absence of a statement of defence means that no issue is joined”
But where a statement of defence was filed and the facts pleaded by the claimant are denied in a statement of defence issues are joined: See Oyefolu v. Durosinmi (2001) 52 WRN 1 at 15 to wit:
“The averment in paragraph 9 of appellant’s statement of claim was denied by the respondent in the amended statement of defence. The issues were therefore joined. A trial Court has a duty to make express findings on issues proved by parties and the decision of the Court on such issues form part of the ratio decidendi of that case.”
The Supreme Court has deprecated a situation where arguments raised on appeal are not supported by the pleadings. See Idahosa & Ors v. Oronsaye (1959) 4 FSC 166 pages 170-171 cited with approval in International Bank of West Africa Ltd. vs. Imano (Nig.) Ltd. & Anor (2001) 5 SCNJ 160 at 184. Furthermore, the submissions of learned Counsel on appeal should be on points argued in the court of trial. See Balogun v. Obisanya & ors. (1956) 1 FSC 22 at 23.
Order 17 rule 8 of the High Court of Cross River State (Civil Procedure) Rules, 2008 provides that:
“8. A party may by his pleading join issues upon the pleading of the opposing party and such joinder of issues shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined except any fact which the party may be willing to admit.”
Order 17 rule 4(1) of the High Court of Cross River State (Civil Procedure) Rules, 2008 reads as follows:
“4(1) An allegation of fact in any pleading if not specifically denied in the pleading of the opposite party shall be taken as admitted except as against a person under legal disability.”
Learned Counsel to the appellant argued the applicability of the Cross River State Limitation Law of
1991. The facts leading to the applicability of the Limitation Law supra should have been pleaded in the statement of defence. This is made clear in order 17 rule 4(3), 6(1) and (2) of the High Court Civil procedure Rules 2008 to wit:
“6(1) All grounds of defence or reply which make an action not maintainable or if not raised wilt take the opposite party by surprise or will raise issues of facts not arising out of the preceding pleadings shall be specifically pleaded.
(2) where a party raises any ground which makes a transaction void or voidable or such matters as fraud, Limitation Law release, payment, performance facts showing insufficiency in contract or illegality either by any enactment or by common law he shall specifically plead same.”
See also Anyanwu v. Mbara & ors (1992) 6 SCNJ 22 at 30. In the absence of a statement of Defence I resolve issue four against the appellant.
ISSUE FIVE (5):
Learned Counsel’s argument on this issue is that having filed a motion for extension of time to file a memo of appearance and statement of Defence the learned trial judge should not have struckout the application for failure to pay the penalty of N200 per day. Secondly, the trial judge should not have denied the Counsel’s application for adjournment. That this constituted a breach of fair hearing under section 36(1) of the constitution of the Federal Republic of Nigeria 1999 as altered.
On 20th February, 2009 when the matter came up for nearing it was clear that the appellant had not filed any statement of Defence nor memorandum of appearance. Mr. Oyong Esq. informed the court as follows:
“Oyong: We were briefed immediately after the JUSUN strike. I became aware of the Hearing Notice only yesterday. We have not yet entered appearance. We have not yet file our statement of defence. Wants an adjournment.
Court: 2nd defendant has not filed anything before me so I cannot exercise any discretion in his favour.”
Upon this ruling Pw1 was sworn in; he testified and was cross examined by Mr. Oyong Esq. of Counsel to the appellant. The suit was further adjourned to 16th March, 2009. On that day Mr. Oyong Esq. further cross-examined Pw1. Thereafter, learned counsel to the 1st Respondent closed his case and the suit was adjourned to 7th April, 2009 for defence. Only then did the appellant file the application for extension of time to put in a memo and statement of Defence on 16th March, 2009. From the printed record it is a fact that the writ of summons was filed on 21st November, 2008 accompanied with a statement of claim. The appellant’s motion for extension of time to file a memo and statement of Defence was supported by a 22 paragraph affidavit deposed to by the appellant to wit:
“1. I am the 2nd Defendant/Applicant in this Case-
2. I was served with the writ of summons in this case sometimes in December, 2008.
3. I am informed by our solicitors, the firm of G.U. Oyong & Company of No.9 Abong Aseng Street, Akim, Calabar, and I verily believed them that the time allowed me to enter appearance in this matter or file my statement of Defence expired on the 17th January, 2009.
4. The delay in entering my appearance within the period specified in the writ of summons was not caused by me but by the judicial workers’ strike that took place between November, 2008 and 12th January, 2009.
5. The same reason accounted for my inability to file my statement of Defence within the time allowed by the Rules.
6. I consulted my solicitors on 17th December, 2008 and briefed them on 19th January, 2009.”
The appellant thus admitted been served the writ of summons “sometimes in December 2008.” When the appellant briefed Counsel he was informed that the time to file his statement of Defence expired on 17th January, 2009. The appellant attributes the delay in filing the statement of defence to the strike embarked by judicial workers nationwide which he put “between November, 2008, and 12th January, 2009.” The appellant also admitted he had consulted his solicitors on 17th December, 2008 and briefed them on 19th January, 2009. This was after the time for filing a statement of Defence had expired. Paragraph 4 of the Counter affidavit by Elder Obo Archibong (Pw1) was that the Judicial worker’s strike started “in 2nd week of December, 2008 and ended the 1st week of January, 2009”. See page 69 of the printed record. The records of 25th May, 2009 read as follows:
“RESUMED AT CALABAR THIS MONDAY, THE 25TH DAY OF MAY, 2009:
Claimant and 2nd defendant in Court.
W. Akpama with O. Ekpenyong for Claimant
G.U. Oyong for 2nd defendant.
Akpama: Application for extension of time was not paid N200 per day as stipulated in Order 5 rule 4.
The statement of defence has no written statement on Oath of their witnesses attached.
Defendants were served on 24th November, 2008 with writ and statement of claim.
Oyong: We have explained why we could not file our statement of defence on time.
Court: From the affidavit of service in the file the 2nd defendant was served with the summons, statement of claim and, list of claimant’s witnesses and statements of witnesses on oath on 24th November, 2008. 2nd defendant had 14 days to react thereto. There after he was out of time from 8th December, 2008 by Order 5 rule 4 he had to pay N200.00 day of default Applicant had to pay that money at the time of filing his application for extension of time. Failure to do so rendered his application to tender for appearance out of time and extension of time to file his defence out time in competent. It is hereby struck out.
Oyong: We do not want to call evidence we rely on the case of the plaintiff.
Akpama: I want 14 days to file address.
Adjourned to 15th June, 2009 for adoption of addresses.
SGN.
E.E. ITA
25/05/2009.”
From the above extract the main reason given by the learned trial Judge for striking out the application to file a defence out of time was the failure of the appellant to pay the N200.00, per each day of default as provided under order 5 rule 4 of the High court of cross River state (Civil Procedure) Rules, 2008 which reads as follows:
“4. The Judge may, as he deems fit, either before or after the expiration of the time appointed by these Rules or by any judgment or order of the Court, extend or abridge the time for doing any act or taking any proceedings:
Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules, shall pay to the Court an additional fee of two hundred naira for each day of such default at the time of filing his application for extension of time.”
Order 1 rule 1(2) of the high court (Civil Procedure) Rules, 2008 provides that the application of the Rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice. under rule 1(3) it is further provided that where a matter arises in respect of which no adequate provisions are made in the Rules, the Court shall adopt such procedure as will in it is view do substantial justice between the parties concerned.
The first part of Order 5 rule 4 of the High Court (Civil Procedure) Rules, 2008 applicable to Cross River State confers a discretion on the Judge as he deems fit, to extend or abridge the time for doing any act or taking any proceedings. But the proviso to the rule makes it mandatory that any party who defaults in performing an act within the time authorized by the Judge or under the Rules shall pay to the Court an additional fee of Two Hundred Naira for each day of such default at the time of filing his application for extension of time. The proviso is couched in mandatory terms with the use of the word “shall” See Edewor v. Owegha (1987) 2 SC 29 at 108; Katto v. CNB (1991) 12 SCNJ 1 at 17 and Oloyo v. Alegbe (1983) 2 SCNLR 35. The purpose of a proviso is to cut down or qualify something which has gone before, usually called the enacting clause. See Anya & ors. V. State (1965) NWLR 62 at 64 and Nabham V. Nabham (1967) NMLR 130 at 135.
The main part of a section of a statute or rule of court is not to be construed so as to render the proviso redundant. See R. v. Leeds Prison (Governor) Exp. Stafford (1964) 2 Q.B. 625. In LlyodS & Scottish Finance, Ltd. vs. Modern Cars & Caravans (Kingston) Ltd. (1966) 1 Q.B. 764 Edmund Davies J. (as he then was) held that a proviso is “…of necessity …limited in its operation to the ambit the section which it qualifies.” In Attorney General vs. Chelsea Waterworks Co. (1731) Fitz 195 it was held that “…it speaks the intention of the makers.”
The discretion to extend or abridge the time for doing any act or taking any proceedings conferred on the Judge or under Rules of Court is thereby controlled by the proviso to Order 5 rule 4 of the Rules supra, namely, by payment of two hundred Naira per day for each day of such default at the time of filing the application for extension of time.
Learned Counsel to the appellant’s argument that learned trial Judges should not be revenue collectors is not supported by the wordings of the proviso to Order 5 rule 4 of the Rules of the Court.
The legislative intention is to ensure that rules of Court and orders made by judges are duly and promptly complied with to ensure efficient and speedy trial. This is a clear departure from the previous situation where parties or Counsel would default in complying with the orders of trial Judges or rules of court with impunity thereby unnecessarily prolonging the trial but escalating the cost of obtaining justice in the law courts. I think I am supported in this views by the Supreme Court judgment in Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252 cited with approval in Okolo v. UBN Ltd. (2004) 5 NWLR (pt.859) 87 where Niki Tobi, JSC held at, pages 108-109 paragraphs “G” to “G” as follows:
“In Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252 where the appellants failed to pay the appropriate fees for an additional claim for forfeiture, the Supreme Court held that the claim was incompetent Delivering the leading judgment, Iguh, JSC, said at page 292 and I will quote him in extensor:
‘Quite apart from the fact that court orders must be obeyed as directed, it cannot be overemphasized that for a valid and effective commencement of a claim, an intending plaintiff shall strictly comply with the provisions of relevant statutes and the rules made there under and governing the claims made such as the High Court Law and the Rules of Anambra State. It is the responsibility of the plaintiff inter alia to pay the requisite fees in respect of each and every relief claimed as prescribed by the rules to enable the Court’s judicial functions to commence. A Court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the Court or such fees are payable by any Government Ministry or none-Ministerial Government Department or Local Government pursuant to the provisions of the said High Court Rules of Anambra State. If the default in payment is that of the Plaintiff, the claim in respect of such prescribed fees have not been paid cannot be said to be property before the court and should be struck out in the absence of an appropriate remedial action or application to regularize such anomaly. In this present case, no payment whatsoever was made by the appellants in respect of their new claim for forfeiture. Payment of the prescribed fees being a condition precedent to the filing of a valid claim before the court, it seems to me clear that the claim for forfeiture in the present suit is incompetent, improperly before the Court and ought to be struck out. In the circumstance, it becomes entirely idle and academic to examine the various reasons given by both Courts below in refusing the appellants’ claim for forfeiture which must be and is hereby struck out.”In the light of the above, I have not the slightest difficulty in accepting the invitation of Chief Akpofure to strike out the new reliefs No.21E and D and I hereby accordingly strike them out”
Accordingly the learned trial Judge rightly struck out the application for extension of time to file a defence when the additional fees were not paid at the time of filing the application. The result is that the appellant filed no statement of Defence before the lower Court. Furthermore, as on 20th February, 2009 when hearing commenced there was evidence that the processes had been served on the appellant since 24th November, 2009 but the appellant briefed his counsel only on 19th January, 2009 when time for filing defence had expired on 17th January, 2009. The appellant cannot be heard to complain that he was not given opportunity to be heard. I rely on the authorities cited by learned Counsel to the 1st Respondent to hold that Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered was not breached by the learned trial Judge.
The learned trial Judge would have erred only if he had struck out the application if the penalty had been paid. In that case he would have been obliged to look at the proposed statement of Defence. See UBA Ltd. v. Dike Nwora (1978) 2 LRN 149. But the failure to pay the penalty meant the application had not been initiated by due process of law. See Madukolu & Ors. v. Nkemdilim (1962) 1 All NIR 587 at 595. The learned trial Judge lacked the competence to adjudicate on the application. I resolve this issue against the appellant.
ISSUE SIX (6):
In issue six the learned Counsel challenged the award of N100, 000.00 damages against the appellant and the 1st Respondent, citing Elema v. Akenzua (2000) 19 NWLR (pt.19) 534 at 535. Counsel argued that the Claimant did not adduce sufficient evidence to prove her claim and to further warrant the award of damages.
Learned Counsel to the Registered Trustees however referred to the oral and documentary exhibits tendered before the lower Court to show that the appellant and the 2nd Respondent were trespassers on the land. The Registered Trustees were entitled to be damnified by the appellant and the 2nd Respondent.
Order 17 rule 25 of the High Court of Cross River State (Civil Procedure) Rules, 2008 provides thus:
“25. No denial or defence shall be necessary as to damages claimed or their amount as they ate deemed to be in issue in all cases, unless expressly admitted.”
The claimant did not need to specifically plead general damages for the learned trial judge to make an award upon finding that the Appellant and 2nd Respondent were trespassers on the land. See Incar Motors v. Benson (1975) 3 SC 117; Hanseatic International Ltd. v. Usang (2003) FWLR (Pt.149) 1563 at 1590 paragraph “G-H”. Besides, title was in issue when the claimant sought perpetual injunction, damages and trespass see Okorie v. Udom (1960) 5 FSC 162/165; Bornu Holding Co. v. Bogoco (1971) 1 All NLR 324 at 329.
In paragraphs 1-4 of the Statement of Claim the appellant pleaded the following facts:
“1. The plaintiff is a registered incorporated trustee.
2. The Attorney is an Elder in the Apostolic Church Odukpani Road Diamond Hill Calabar.
3. The 1st defendant is the husband of late Mrs. Iniko Comfort Eyo Paul (nee Iniko Comfort Etim Eyo Ekpo) who contested ownership of No.38 Odukpani Road Diamond Hill Calabar Bungalow & 1/2 Land).
4. The 2nd defendant is the illegal occupant of No.38 Odukpani Road, Diamond Hill Calabar Bungalow).”
Even if the learned trial Judge had not struck out the proposed statement of Defence on 25th May, 2009 it can be seen how the appellant would have contested the 1st Respondent’s claim on the facts set out in the proposed statement of Defence to wit:
“Save as is hereinafter expressly admitted, the 2nd Defendant denies every allegation of fact in the statement of claim as if the same set down seriatim and specifically traversed:
1. The 2nd Defendant admits knowing the Apostolic Church but shall require strict proof of its incorporation.
2. Paragraph 2 of the Statement is denied as the purported power of Attorney is invalid and worthless. Though the representative of the claimant may be an Elder, he lacks the capacity to represent it as he is not a trustee of the claimant.
3. The 2nd Defendant admits paragraph 3 of the Statement of claim; and in further answer states that the said Comfort Etim Eyo Ekpo was the successor to Mary Eyo Ekpo (deceased), owner of No. 38 Odukpani Road, Calabar.
4. Paragraph 4 of the Statement of claim is denied. The 2nd Defendant is a tenant of late Mary Eyo Ekpo and her late successor Iniko Comfort Etim Eyo Ekpo-”
In other words, had the learned trial Judge granted the application for extension of time for the appellant to file a statement of Defence there is the appellant’s admission that he was a tenant at No.38 Odukpani Road Calabar; that he derived his possession as a tenant through late Marv Eyo Ekpo through whom the 1st Respondent lays claims to the property in dispute. The appellant would have therefore founded his main plea on the principle of jus tertii.
In the Winkfield (1900-1903) All E.R. Rep. 346 cited in “A Casebook on Tort,” 3rd edition by Tony Weir page 551 Collins M.R. held thus:
“It cannot be denied that since the case of Armory vs. Delamirie (1722) 1 Stra. 504; 93 E.R. 664), not to mention earlier cases from the Year Books onward, a mere finder may recover against a wrongdoer the full value of the thing converted. That decision involves the principle that as between possessor and wrongdoer the presumption of law is, in the words of Lord Campbell in Jeffries vs. Great western Ry. (1856) 5 E & B. 802, 806; 119 ER. 680), “that the person who has possession has the property.” In the same case he says:
“I am of opinion that the law is that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrongdoer, and cannot defend himself by showing that there was title in some third person, for against a wrongdoer possession is title. The law is so stated by the very learned annotator in his note to Wilbraham vs. Snow” (1670) 2 WMS. Saund 47f. 85 ER. 624). Therefore it is not open to the defendant being a wrongdoer, to inquire into the nature or limitation of the possessor’s right, and unless it is competent for him to do so the question of his relation to, or liability towards, the true owner cannot come into the discussion at all; and, therefore, as between those two parties full damage have to be paid without any further inquiry. The extent of the liability of the finder to the true owner not being relevant to the discussion between him and the wrongdoer, the facts which would ascertain it would not have been admissible in evidence, and therefore the right of the finder to recover full damages cannot be made to depend upon the extent of his liability over to the true owner. To hold otherwise would it seems to me, be in effect to permit a wrongdoer to set up a jus tertii under which he cannot claim.”
The appellant could not set up jus tertii as a defence unless he acted on the authority of the real owner of the property or sets up title in himself. See Shell BP v. Abedi (1974) 1 SC 23 at 49.
The Claimant testified through Pw1 and tendered documentary exhibits. Exhibit “3” is the agreement between Madam Mary Eyo Ekpo of No.38 Odukpani Road, Diamond Hill, Calabar, Cross River State of Nigeria the Assignor” and the Apostolic Church of Nigeria, Cross River State “the Assignee” Madam Mary Eyo Ekpo Signed as the Assignor and Emmanuel O. Eyo as a witness. The Apostolic Church of Nigeria’s Mission Trustee and the National president appended their Signature to Exhibit “3” Arch. Ikoi Ibiang Ofem, commissioner for Lands, Survey and Town planning, Cross River state of Nigeria’s signature appears on Exhibit “3” with a postage stamp. The information therein is “sealed deed of Assignment for N16, 000.00 with payment receipt No. 93220 of 6th September, 1991 of N481.50.” The Apostolic Church is “To hold the same unto the Assignee for all the residence of the unexpired term of Ninety-nine (99) years granted in the said certificate of occupancy…”Exhibit “3” further shows that consent to assign the property was approved by Arch. Ikoi Ibiang Ofem on 18th September, 1991. Exhibit “4” of 5th August, 1991 is a letter from Mary E. Ekpo who described herself as “Landlady intimating the Director Lands Department P.M.B. 1072 Calabar, she had “agreed absolutely to give my Landed Property (Permanent Building and parcel of land therein situate at No.38 Odukpani Road, Diamond Hill, Calabar) to the Apostolic Church, for the services of God. Now that I am invalid and failing in health, the Apostolic Church will henceforth take good care of me during my life time and death. Thanks. Yours, faithfully, Mary E. Ekpo, Landlady.” Exhibit “6” is evidence of all that the Apostolic Church should do in the event of the demise of the Assignor for instance grave, coffin, monument, etc. Exhibit “6” further assures that all previous negotiations on the land were satisfactory. This includes the bungalow and 1/2 land, Kitchen, shade and consideration paid for acquiring both. Exhibit “6” is headed “Correction of Draft(s) Agreement” dated 11th January, 1991. Exhibit “7” of 21st August, 2002 is the agreement wherein the Administrator (Mrs. Iniko Comfort Kennedy) handed over the property to the Apostolic church of Nigeria, cross River State in fulfillment of the agreement of 30th August, 1991 between late Madam Mary Eyo Ekpo who died on 8th January, 1994 and the Apostolic Church. Exhibit “8”, of 12th May, 1994 is from the office of the Director of Lands Division Calabar to Pastor in charge of the Apostolic Church of Nigeria No.38 Odukpani Road, Diamond Hill, Calabar reminding the church that the rent for the years 1993-1994 amounting to N144.85k was due and ought to be paid. Exhibit “9” of 26th July, 1994 and 9A of 5th March, 1996 are payment receipts of annual rent for the year 1993-1994 and 1995 to 1996 respectively. Exhibit “10” of 21st December, 1994 is evidence of payment of land rent by the Church for 89 years in respect of the property under discussion.
Exhibit “11” of 22nd December, 1994 is a request from the Presbyterian church of Nigeria to the pastor in charge of the Apostolic church requesting that a space of about six feet be carved out on the boundary Elder Igwiro’s family plot to serve as access road to that compound since that was the arrangement with the owner of the property before her demise. Exhibit “C” of 16th September, 1994 reviewed the relationship of lessor (The Presbyterian Church of Nigeria Ishie) with the lessee (The Apostolic Church of Nigeria) entered between them on 1st June, 1973 over a parcel of land at Atekong measuring 60ft x 160ft for a term of 10 years. In Exhibit “2” of 4th October, 1989 O.E. Archibong, District Secretary of the Apostolic Church wrote to the Landlady of No. 38 Odukpani Road, Diamond Hill Calabar expressing the churches desire to purchase her plot of land together with all the building/structures on it or half of the plot and further wished they had a discussion on the matter. Exhibit “1” is the power of Attorney by Pastor D.A. Efanga to Elder obo Eso Archibong. The donor of the power of Attorney describes himself as “Field Secretary.” Exhibit “A” is made on 13th March, 2007. Some paragraphs of Exhibit “1” read as follows:
“6. My Attorney may bring or defend any proceeding in respect of or affecting the Apostolic Church Diamond Assembly and to enforce any other security vested in me in respect thereof
10. The powers given by this Power of Attorney apply to all property and now owned by or vested in The Apostolic Church Diamond Assembly.
11. Generally my Attorney may act in relation to the subject matter of the power of Attorney as fully and effectually in all respect as I could act myself as the trustee of the Apostolic Church.
12. My Attorney is appointed for the purpose of executing the trust powers and discretions vested in me as Field superintendent and trustee of The Apostolic Church.
13. I agreed to ratify and confirm all things my Attorney lawfully does under this Deed.”
From the oral and documentary evidence adduced by the 1st Respondent at the trial court, I am of the humble opinion that the claimant’s evidence in proof of title to No.38 Odukpani Road, Diamond Hill Calabar, Cross River State was unchallenged. The landlady through whom the appellant claimed to be her tenant at No.38 Odukpani Road, Diamond Hill, Calabar, had divested her title to the Apostolic Church since the making of Exhibit “3” of 30th August, 1991. The appellant ought to have quitted and given up possession to the Church upon demand. The appellant’s refusal to vacate constituted him into a trespasser ab initio. The appellant’s initial entry may be lawful but subsequent acts like abusing his possession or contesting title with the 1st Respondent constitutes him into a trespasser. See Ajibade v. Pedro (1992) 6 SCNJ (Pt.1) 44 at 57; (1988) 4 SCNJ 23 and Balogun vs. Dada (1988) 2 SCNJ 104. A trespasser cannot acquire the title of the true owner of the land merely by his long acts of trespass or possession. See Ojomu v. Ajao (1993) 9 SC 22/30; Onwujuba v. Obienu (1991) 1 SCNJ 40. Proof of ownership is prima facie proof of possession capable of ousting any trespasser on the land. See Badejo v. Sawe (1984) 6 SC 350 at 353.
The 1st Respondent sought to eject the appellant from No.38 Odukpani Road, Diamond Hill, Calabar and had the onus of proving better title. See Odhahe v. Okujeni (1973) 3 ECSLR (Pt. 2) 1062 at 1068; Aromire v. Awoyemi (1972) 1 All NLR 101 at 113; Ajani v. Ladepo (1986) 3 NWLR (Pt.28) 276. I hold that the 1st Respondent proved better title to No.38 Odukpani Road, Diamond Hill Calabar.
The claimant’s legal right to the land in dispute having been infringed by the appellant and 2nd Respondent and there being a continuance or threat of a continuance of such an invasion, the Church was entitled to damages. See Ibenwelu v. Lawal (1971) 1 All NLR 25 at 26.
The law that incorporation of a body is to be proved by the production of the certificate of incorporation is demanded when that is made an issue on the pleadings. See Registered Trustees of Apostolic church, etc vs. Attorney-General of Mid West (1972) 1 All NLR (Pt.1) 356 at 363; J.K. Randle v. Kwara Breweries (1986) 6 SC 15 and ACB & Anor. V. Emostrade Ltd. (2002) FWLR (Pt.104) 540. There was no dispute on the issue of incorporation of the 1st Respondent since no statement of Defence had been filed. On the whole I resolve this issue against the appellant.
Accordingly, the appeal lacks merit and is dismissed with N50,000.00 costs to the 1st Respondent. The judgment of the trial Court is hereby affirmed.
UZO I. NDUKWE-ANYANWU, J.C.A: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Tine Tur, JCA.
I agree with his reasoning and final conclusions in dismissing this appeal. I also abide by the order as to costs in the lead judgment.
ISAIAH OLUFEMI-AKEJU, J.C.A: I had read in advance the judgment of my learned brother, Joseph Tine Tur, JCA just delivered. I agree with the reasoning of my learned brother and the conclusion that the appeal lacks merit. I dismiss the appeal and abide by the order as to costs.
Appearances
G.U. Oyong & J.A. AkpabioFor Appellant
AND
James IborFor Respondent
