MR. EJIKE AGODI v. MR. VICTOR ANYANWU & ORS (2014)

MR. EJIKE AGODI v. MR. VICTOR ANYANWU & ORS

(2014)LCN/7468(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of October, 2014

CA/OW/86/2012

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER AN APPELLANT CANNOT DISTILL MORE THAN ONE ISSUE FROM A SINGLE GROUND OF APPEAL

Of course, the law is trite that Appellant cannot distill more than one issue from a single ground of appeal, though a single issue can derive from two or more grounds of appeal. See Ossai vs FRN (2012) LPELR – 19669 (CA) (2013) 13 WRN 87; Osadare & Ors vs Liquidator NPM ltd (2011) LPELR – 9269 (CA); Afribank Plc vs Yelwa (2011) ALL FWLR (pt. 585) 299; Ketu Nto & Anor. Vs G.S.D.I. ltd (2012) LPELR – 7997 CA. per. ITA G. MBABA, J.C.A.

APPEAL: FINDINGS NOT APPEALED AGAINST; THE IMPLICATION OF FINDINGS NOT APPEALED AGAINST

That excellent findings has not been faulted or appealed against in this appeal by any of the parties and so remain binding and conclusive. See Ojeabuo vs FRN (2014) LPELR – 22555 CA; Amale vs Sokoto L.G. (2012) 5 NWLR (pt. 1292) 181; Uwazurike vs Nwachukwu (2013) 3 NWLR (pt. 1342) 503; Kazuare and Ors vs Kafinta & Ors (2014) LPELR – 22901 (CA); Shukka vs Abubakar (2012) 4 NWLR (pt. 1291) 497; Asabe vs Babale (2013) LPELR – 22360 CA. per. ITA G. MBABA, J.C.A.

JUSTICES:

R. C. AGBO Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

MR. EJIKE AGODI – Appellant(s)

AND

1. MR. VICTOR ANYANWU
2. COMMISSIONER FOR LANDS, SURVEY & URBAN PLANNING
3. ATTORNEY-GENERAL, ABIA STATE – Respondent(s)

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Abia State High Court in Suit No. HOB/31/2002, delivered on 18/10/2011 by Hon. Justice, O.A. Otisi J. (as she then was), wherein her Lordship held, dismissing the Suit, as follows:
“(1) The claims sought by the claimant fail and are hereby dismissed.
(2) It is hereby declared that the certificate of occupancy dated 4th May, 2002 granted to the 1st Defendant and registered as No. 42 at page 42 in Volume 63 of the Lands Registry office at Umuahia based on its merits stands and remains effective.
(3) The claims of the 1st Defendant for damages and for order of perpetual injunction restraining the claimant from further acts of trespass are not proved and are hereby refused.
(4) The counter-claim of the 2nd and 3rd defendants is refused.
(5) It is also ordered that the 2nd Defendant is to re-establish the proper boundaries between the land of the claimant, as demarcated in the certificate of occupancy issued in his favour, and the land of the 1st defendant, as demarcated in the certificate of occupancy in his favour, and as shown and delineated in the charting plans A & B.” (See ages 302 to 303 of the Records of Appeal).

The Appellant, as claimant at the Court below, had filed the Suit claiming the Sum of Five Hundred Thousand Naira (N500,000.00) as general damages against the 1st Defendant (1st Respondent herein) for trespass on the parcel of land lying and situate at Umuelendu Village in Obingwa Local Government Area of Abia State, measuring approximately 1320.526 Square metres and shown or delineated in the Survey Plan No. OSN/AB/179/99, attached to certificate of occupancy dated 3/2/2002 and registered as No. 14 at page 14 in Volume 60 of the Lands Registry in the office at Umuahia. The Land was also the subject matter marked GREEN in the Survey Plan No.OSN/ABD/14/2002 prepared on 18/10/02, by E.O. NWOGU, Licenced Surveyor. He also sought a declaration that the 2nd grant of the land of the Plaintiff to the 1st Defendant and certificate of occupancy dated 4/5/2002, was wrongful, null and void, and for injunction restraining the defendants by themselves, their servants and or agents from committing further acts of trespass on the said piece or parcel of land. (See pages 97 – 98 of the Records- Amended statement of claim of the Plaintiff)

The 1st Defendant filed a counter-claim, seeking N1,000,000 (one million Naira) general damages against the plaintiff for trespass. He also sought a declaration that the certificate of occupancy dated 4/5/2002 granted to him and registered as No.42 at page 42 in volume 63 of the Lands Registry, Umuahia, based on its merits stood and remained effective, and an injunction, perpetually, restraining the plaintiff by himself, servants, agents and privies from committing further acts of trespass on the land. See page 47 of the Records.

Appellant filed his Notice and grounds of Appeal on 21/11/2011 and disclosed four (4) grounds of appeal, as per pages 304 to 308 of the Records of Appeal. The 1st Respondent cross-appealed, as per Notice of Cross-Appeal, filed on 30/10/12, with the leave of this court, granted on 10/2/14. In the Cross-Appeal, the 1st Respondent disclosed seven (7) grounds of appeal.

Appellant filed his brief of argument on 21/5/12 and distilled three (3) Issues for determination, namely:
1) Whether from the pleadings and totality of the evidence before the trial court, judgment ought to have been entered for the claimant/Appellant on the claims for damages for trespass and injunction against the 1st Defendant/Respondent.
2) Whether the 1st Defendant/Respondent can lay a valid claim to the land in dispute in view of the fact that the area conveyed by Exhibit N is at Umuola Egbelu village in Aba North Local Government Area, whereas the land in dispute is at Umuelendu Village in Obingwa Local Government Area of Abia State.
3) Whether the 2nd and 3rd Defendant/Respondents proved that the land of late Archbishop Nwafor Dimoji at Umuelendu Village in Obingwa Local Government Area, which the Claimant/Appellant bought, or any part of the land in Umuelendu village is now a part of the New Industrial Layout Aba, in Aba North Local Government Area of Abia State, by acquisition.

Appellant did not relate the issues to the grounds of Appeal.
The 1st Respondent filed what he called “1st Respondent/Cross-Appellant’s Brief of Argument In Reply to Appellant’s Brief And in Respect of His Cross-Appeal.” The process was filed on 26/6/2012 and deemed duly filed on 10/2/14. He distilled six (6) Issues for determination, as follows, (i.e, for the determination of the Cross-Appeal):
1) “Whether the Claimant/Appellant could secure possession by his act of trespass on land in possession of the 1st Respondent/Cross-Appellant or by the certificate of occupancy procured after his said trespass.
2) Whether from the admissions, exhibits and evidence of the Claimant/Appellant which support the Trial Court with specific findings of the trial court, judgment ought to have been entered on his counter-claim for damages for trespass and perpetual injunction against the Claimant/Appellant.
3) Whether the Claimant/Appellant whose land was fenced by his donor, before selling same to him, can validly lay claim to land in exclusive possession of the 1st Respondent/Cross-Appellant which situates outside his fence.
4) Whether by withdrawal of the main issue in his cause of action in the trial court in respect of the 1st Respondent/Cross-Appellant’s certificate of occupancy Exh. N, the Claimant/Appellant can validly maintain this appeal on the basis of the same issue withdrawn on his volition and struck out by the Trial Court.
5) Whether by totality of over-whelming evidence at the Trial Court that Claimant/Appellant’s Certificate of Occupancy Exhibit A was issued in error and upon his fraudulent misrepresentation of facts, judgment ought to have been entered for the 1st Respondent/Cross-Appellant.
6) Whether the alleged discovery by the Claimant/Appellant’s surveyor that 1st Respondent/Cross-Appellant trespassed upon his land which formed the basis of his initiating his suit at the Trial Court against the 1st Respondent/Cross-Appellant was hearsay, unsubstantiated and his failure to summon his said surveyor to lead evidence to substantiate his alleged discovery was not fundamentally fatal to his case”

The issues, again, were not related to the grounds of the Cross-Appeal by the Cross-Appellant.

It is necessary to note that the 1st Respondent, by so doing, did not file any Respondent’s Brief or credible brief in reaction to the Appellant’s brief. In the same way, the Appellant filed no Cross-Respondent’s brief in answer to the 1st Respondent/Cross-Appeal. But the Appellant filed a Reply Brief on 5/7/2012, which went to no issue as the 1st Respondent filed no Respondent’s Brief.

These facts came to light when the Appeal was heard on 18/9/14, as the Appellant’s Counsel kept drawing our attention to the fact that there was no 1st Respondent’s brief to contest or dispute the argument of the Appellant in this appeal. Learned Counsel for the Appellant also admitted, strangely, that he failed to file Cross-Respondent’s brief, because the 1st Respondent had filed no Respondent’s brief.

That argument was completely strange and illogical, as it is well known, in law, that a cross-appeal is a complete and separate appeal from the main appeal that hosts it, and that their briefs should be treated separately; that failure to file Respondent’s brief cannot be a justification for refusal to respond to a cross-appeal by way of Cross-Respondent’s brief. It has to be stated also, that filing of cross-appeal does not replace the need to file a Respondent’s brief to contest the arguments in the Appellant’s brief, as the 1st Respondent appeared to have thought in this appeal, thereby falling into grave error of attempting to argue the appeal and the cross-appeal, jointly, in the same process, and mixing up both, in the issues(s) for determination as if to tell the Appellate Court to try and sought out the argument that applies or fits any of them!
That smacks of gross lack of experience or exposure in the handling of appeal processes. But the fact is that the court remains a practice school for learning, everyday, for practitioners and every person, who approaches the throne/temple of justice. Not even the judge/justices who preside(s) over this temple, and constitute the court, can close his/their mind(s) to learning, to adapt to new challenges, and burrow in research, to be able to acquit the court of avoidable error(s) and flaw(s) in its search for and dispensing of justice. A Counsel should, therefore, be willing, ready and humble enough to ask questions and consult books and experienced colleagues, when in doubt of what to do. This point was made in my little handbook: Civil Appeals To The Court of Appeal – A Critical Appraisal (2012) page 5, where I said:
“. . . as lawyers, we can never graduate from learning, though we usually pride ourselves as “learned”. We, in fact, learn everyday, and the court of law, where we practice our trade, has always been an informal classroom for both lawyers and judges to update their knowledge. A lawyer/judge who closes his mind to learning or thinks he has known enough, is either “lying-in-state” (to be lowered down, six feet, to a permanent resting place) or is about to do so! That is to say that while we are alive, we cannot stop learning.”
It is always proper, in an appeal, where there is a cross-appeal, to file both the Respondent’s Brief and the Cross-Appellant’s Brief, separately, to avoid a mix-up. Of course, that would also require filing Cross-Respondent’s Brief, separately from Appellant’s Reply Brief (if any) to the Respondent’s Brief.

The 2nd and 3rd Respondents filed their Brief on 21/10/2013 and the same was deemed duly filed on 10/2/2014. They had earlier filed a cross-appeal but appear to have abandoned it, as they filed no brief to it. The 2nd and 3rd Respondents distilled two (2) issues for determination, as follows:
1) “Whether the learned trial judge was right to have dismissed the claims sought by the appellant in the light of the pleadings and evidence before the trial court.
2) Whether the pleadings of the 2nd and 3rd Respondents and the evidence led thereon established that the land granted to the Appellant, under Exhibit B, fell within the area acquired as New Industrial Layout, Aba.”

The 2nd and 3rd Respondents, too, did not relate any of their issues to the grounds of the appeal.

Failure to relate issues to the grounds of appeal can be fatal, as appeals are argued on the issues which must properly distil from the grounds of appeal. The authorities are replete on this. See AFRIBANK NIG PLC V YELWA (2011) NWLR (PT.1261) 286; OSSAI V FRN (2013) 13 WRN 87; IBENEME V AWOLABI & ORS (2014) LPELR 23541 CA; SHETTIMA V GONI (2011) 18 NWLR (1297) 413.

A brief of facts of the case at the trial court showed that Appellant bought a piece of land at Umuelendu Village Obingwa L.G.A. from one Archbishop Nwafor Dimoji (who died during the pendency of the suit at the lower court). Appellant hired a surveyor to re-establish the survey beacons of the land which had been earlier surveyed by his Vendor, as per Exhibit C, given to the Appellant by the Vendor and duly registered. It was the surveyor who, in the course of his assignment, allegedly discovered that the 1st Respondent was occupying a portion of the Appellant’s land. The Appellant wrote a petition to the 2nd Respondent (Commissioner for Lands Survey and Urban Development, Abia State) as per Exhibit E, and on the strength of that, a Director of Lands visited the site and attempted to share the disputed portion between the two parties. Appellant rejected that and sought redress in court.

Before the filing of the suit, the Government of Abia State had granted Certificate of Occupancy (Exhibit A) to Appellant in respect of the land earlier owned by Archbishop Nwafor Dimoji, but the 1st Respondent stayed put on the portion of land he claimed and was also issued with certificate of occupancy (Exhibit N) in respect of that portion; Appellant claimed to have discovered, after filing his statement of claim, that the 1st Respondent’s land was located in Umuola Egbelu Village, in Aba North Local Government.

1st Respondent’s land had earlier been acquired by Government in 1988, leaving the portion which he now occupied, for which Exhibit N was issued to him, initially on TOL (Temporary Occupancy Licence) basis. Whereas, the land of the 1st Respondent was in Umuola Egbelu Village, Aba North LGA, that of Archbishop Nwafor Dimoji (sold to the Appellant) was in Umuelendu Village, Obingwa LGA (obviously two neighbouring villages in two separate local government areas).

The Trial Court did not believe the accounts of the Appellant, especially when he amended his statement of claim on seeing that the certificate of occupancy (Exhibit N) issued to the 1st Respondent was in respect of land in Umuola Egbelu Village in Aba North L.G.A. Appellant claimed the trial court misunderstood and misinterpreted the amendment and argued that the court failed to realise that the land covered by Exhibit N did not relate to the land in dispute.

On his part, the 1st Respondent/Cross-Appellant claimed to have bought the land measuring about 1628.44 square metres and was granted power of attorney (Exhibit G) dated 15/3/1983 thereon by Mr. Emeka Ukaegbu of Umuola Egbelu Village and the land was registered as No. 52 at page 52 in volume 280 in the lands Registry Office in Owerri (now Umuahia); he built an 18 room permanent house on a part of the land in 1983, where he was living and running a lucrative restaurant business and also renting some rooms to tenants; he said that in 1988, Imo State Govt (then Abia State was not created) acquired his above land and gave it to 7Up Bottling Company Plc and paid him a paltry sum as compensation; he lost his 18 room-house and his restaurant business and means of livelihood and was devastated; he applied to Imo State Government for a grant of Temporary Occupancy License (TOL) on a part of his said land which remained after the 7Up Bottling Company had taken possession of the part of the land it needed; that on compassionate grounds, in consideration of his previous holding rights, the Commissioner for Lands , Survey and Urban Planning, Owerri, Imo State, by Exhibit H granted him the TOL in respect of his said remaining portion of land which the 7up Bottling Co. Plc did not use, and he was later granted certificate of occupancy (Exhibit N) in respect of the said portion of land and that was on 14/5/2002 and the same registered as No. 42 on page 42 in volume 63 Lands Registry Office at Umuahia and the said land measured 416.179 square metres and adjoined the piece and parcel of land of 7up Bottling Company Plc, Umuola Egbelu in Aba North LGA.

1st Respondent/Cross-Appellant said that he had been in this land, built structures and planted economic trees, long before the Appellant acquired interest over his own piece and parcel of land; that while Appelant’s land is in Umuelendu Village in Obingwa LGA, and fenced, before Appellant acquired interest over it in 1999, his (Cross-Appellant’s) land adjoining the 7up Bottling Co. Plc is in Umuola Egbelu Village in Aba North Local Govt; he said that the effort of the Director of Lands to settle the feud between him and the Appellant resulted in the attempt to exercise part of his land (outside the fenced land of the Appellant) and give to Appellant, but he (Cross-Appellant) rejected it, as it would amount to giving his land in Umuola Egbelu Village in Aba North LGA to Appellant in Umuelendu Village in Obingwa LGA. He added that both his land and that of the Appellant are located within the Government acquired Industrial Layout, Aba and that Appellant’s Vendor, Bishop Dimoji knew this very well and that was why he hurriedly sold the land to the unsuspecting Appellant.

2nd and 3rd Respondents, on their part, admitted that the entire land, including the lands of the Archbishop Dimoji (sold to Appellant) and that of the 1st Respondent had been acquired by Government as New Industrial Layout, Aba, since 1988 and Notice of the acquisition was published in the Imo State Government Gazette No. 15 of 1st Sept. 1988 – Exhibit U; that all the acquired area had been surveyed and charted by the Survey Department of the 2nd Respondent. In particular, the 2nd and 3rd Respondents pleaded in paragraphs 10 and 11 of their defence, as follows:
“(10) . . .all the parcels of land identified in the survey plans mentioned in the preceeding paragraphs fall within the area acquired by Government for the New Industrial Layout, Aba in 1988.
(11) The averments of the plantiff in paragraphs 6,8 and 11 of the statement of claim are entirely false. In answer thereto the 2nd and 3rd Defendants aver as follows:
a) Plan No. OSN/ABD/14/2002 filed with the plaintiffs statement of claim is misleading and does not represent the correct position of the parcels of land.
b) The portion of land purportedly sold to the plaintiff by one Rev N. Dimoji is correctly identified on the 2nd and 3rd Defendants’ charting plan “A” as plan No. E/GA.328/75 while the 1st Respondent’s portion of land is correctly identified on the same charting plan “A” as plan No. ABA (AB) 47 and shares a common boundary with the adjoining land of 7up Bottling Company.
c) The relative positions of the two portions of land indicate that they are entirely independent of each other, separated by a narrow strip of land which marks the boundary between Aba North Local Government Area and Obingwa Local Government Area.”

2nd and 3rd Respondents also admitted in paragraph 12 that the 1st Respondent was granted certificate of Occupancy (Exhibit N) in 2002 after he had lost his larger expanse of land to the Industrial Layout. (See page 67 of the Records of Appeal).

Arguing the appeal, learned Counsel for the Appellant, Boniface N. Enebeke Esq (who settled the brief), on Issue 1, submitted that the Appellant had proved his claims against the 1st Respondent “by proving better title to the land in dispute by his Exhibits A, B and C;” that the 1st Respondent “produced no document as his title to the land in dispute” and cannot use Exhibit N to claim the land in dispute; that the said land in dispute is in Umuelendu Village Obingwa LGA, whereas 1st Respondent’s land in Exhibit N, is located in Umuola Egbelu Village in Aba North LGA!

RESOLUTION OF ISSUES
Though Appellant did not formally relate his issues to any of the grounds of appeal (as earlier observed), the issue 1 appears to flow from grounds 1, 2 and 3 of the appeal, which are (without their particulars), as follows:
1) The learned trial Judge erred in law by failing to consider properly Exhibit N in relation to the land in dispute which is in Umuelendu Village in Obingwa Local Government Area”
2) The learned trial judge erred in law by failing to consider and act on the averments and evidence of the defence which support the case of the Claimant/Appellant”
3) The learned trial judge erred in law by failing to evaluate properly all the evidence before him and make full findings of fact and appropriate inferences and thereby came to wrong decision.”

First of all, I think Appellant was in serious error and greatly misconstrued the law relating to trespass, when he argued this issue – whether from the totality of evidence, the trial court ought not to have entered judgment for Appellant on claims for damages for trespass and injunction – by asserting that he led evidence in proof of better title to the land in dispute, and that the 1st Respondent produced no document of his title to the land!

Title to land was never an issue in the case, as the entire claims of the Appellant centred on trespass to the land occupied by the 1st Respondent, that is, Exhibit N, for which the trial court, in my opinion, made proper findings, that it was duly allocated to the 1st Respondent by the Government, as per the evidence before the court, including those of the Government servants, who issued the certificate of occupancy (Exhibit N) to the 1st Respondent. On page 300 of the Records of Appeal, the learned trial court had held:

“From these charting plans Exhibits V and W, the land belonging to the 1st defendant did not encroach into plan No OSN/AB.179/75 (sic) annexed to Exhibit A the claimant’s certificate of Occupancy, which is supposed to be a reproduction of plan No. E/GA 328/75, the plan on Exhibit B. In my considered opinion, the claimant’s claim for trespass against the 1st Respondent cannot therefore be sustained.”

There was also ample evidence that both the Appellant and the 1st Respondent were on their respective portions of lands, by the grace of Government (2nd and 3rd Respondents), who had issued certificates of occupancy to them, despite the fact that the whole area had been acquired by Government for a new Industrial Layout for Aba, and that even the Vendor (Bishop Dimoji) who let the Appellant into the property on the strength of a purported power of Attorney, had known of the defect in what he purportedly passed on to the Appellant; that he had no power to donate/sell the land to the Appellant, the same having been acquired by Government at the time of the purported sale/donation. Thus, Appellant’s right of possession of his portion was merely being protected, because the law of laches and acquiescence had been invoked and upheld by the trial court against 2nd and 3rd Respondents, who had tried to treat Appellant as a trespasser to the land. See page 298 of the Records of Appeal, where the trial court said:
“. . .where the claimant came into the land on the basis of a power of attorney and then confirmed by a certificate of occupancy issued by Government, constructed a building thereon with a building plan approved by Government, with the claimant believing rightly or wrongly, that the land belonged to him, I do not see how he can be called a trespasser by the 2nd and 3rd Defendants. . .”

Having been so painstaking in its appraisal of the case and evidence, and generous to the Appellant in defending and protecting the portion of land allocated to him by Government, I think the Appellant was therefore uncharitable and unfair to the trial court, to argue that the trial court failed to consider the evidence and facts in his favour, simply because the court did not allow him to annex the portion of the 1st Respondent, who also deserved the same protection given to Appellant, the court having been satisfied that Exhibit N was issued to him (1st Respondent) after his larger expanse of land had been seized by Government to make way for the New Industrial Layout, Aba. There was no basis whatsoever for that accusation by the Appellant.

It can also be said that the entire case of the Appellant was founded on speculation, as it was at the instance of a surveyor he hired to retrace his beacon stones (planted by the vendor who sold the land to him) that he (Appellant) was informed that his land had been trespassed upon by the 1st Respondent! The man who sold the land to him had built a fence to enclose the property and the area of the alleged trespass was outside the fenced land! (See pages 179 and 184 of the Records). Meanwhile, the surveyor who told him of the trespass was not called to give evidence and the vendor, who sold the land and/or errected the fence, did not testify! It shows that the Appellant did not even know the boundaries of his land, and that he would not have kicked or taken any action, had the surveyor not suggested the act of the alleged trespass! It is not surprising, therefore, that the opinion of the said surveyor (in the plan No. OSN/ABD/14/2002) was said to be misleading and did not represent the correct position by the Government – See page 67 of the Records!

How sad that this whole matter arose and was founded on that speculation by a surveyor, whose name was not even disclosed by the Appellant in his evidence! No lawyer, worth his name and call to service, should act on a brief, founded on speculation or suspicion!

The Counsel for 2nd and 3rd Respondent had argued on pages 4 and 5 of their Brief that a close scrutiny of Exhibit V and W shows that the 1st Respondent’s land in dispute (shown as plan No. ABA/AB/47) and the Appellant’s land (shown as No. OSN/BA 179/99 and/or E/GA 328/75) were entirely independent of each other and distinct and that it was agreed by the parties, that the lands were located in different Local Government Areas and that the Appellant also admitted that the 1st Respondent was issued with TOL (Temporary Occupancy Licence) and later with certificate of occupancy on his said land (Exhibit N); that with such admissions against interest, the suit of the Appellant lacked credible basis. He relied on Seismograph services (Nig ltd) vs Eyuafe (1976) 9 – 10 SC 135.

I therefore resolve the 1st issue against the Appellant.

The 2nd and 3rd issues by the Appellant appear to be on the remaining ground 4 of the appeal which (without particulars) stated:
“The Trial Court was in error when it held that the land of late Archbishop Nwafor Dimoji at Umuelendu Village, Obingwa LGA which the Appellant bought was acquired by the then Imo State Government as part of the new Industrial Layout, Aba in Aba North Local Government Area. “

The issue 2 queried “whether the 1st Respondent can lay valid claim to the land in dispute in view of the fact that Exhibit N he claimed was in Umuola Egbelu Village in Aba North LGA, whereas the disputed land claimed by the Appellant is in Umuelendu Village in Obingwa LGA.

Issue 3 appears to be the same as the 2nd i.e,“whether the 2nd and 3rd Respondents proved that the land of late Bishop Nwafor Dimoji at Umuelendu Village in Obingwa LGA which Appellant bought or any part of the land in Umuelendu Village is now part of the New Industrial Layout Aba, in Aba North LGA of Abia State by acquisition!”

The two issues are therefore incompetent and are herby struck out.

I must also add that that ground of appeal and the issues (even if they were competent) were not honest or founded on true facts of the case and evidence, as there was ample evidence and findings that the two villages, which belong to the two separate Local Governments, were/are actually neighbours, and that at the point of the lands of the two disputants, there was/is a strip of land demarcating the two villages and two Local Governments. It is also in evidence, as earlier stated and found by the Lower Court (upon the 2nd and and 3rd Respondent submissions) that the land acquired for the New Industrial Layout, Aba, affected the two villages/Local Governments!

I hold that there is no merit in this appeal. The same is hereby dismissed, with fifty thousand naira (N 50,000.00) cost against the Appellant, payable to the 1st Respondent.

CROSS-APPEAL
I had earlier reproduced the six (6) issues for determination, allegedly distilled by Respondent/Cross-Appellant from his seven (7) grounds of Appeal, filed on 30/10/2012, with the leave of this Court, granted on 10/2/2014. The Cross-Appeal was against only the part of the judgment that held that 1st Respondent/Cross-Appellant did not prove trespass against the Appellant/Cross-Respondent and so was not entitled to damages.

I have earlier stated that the Cross-Appellant did not relate his issues to the grounds of appeal and that the Appellant/Cross-Respondent did not file any answer to the Cross-Appeal.
The grounds of the Cross-Appeal were as follows (without stating their particulars):
1) The Trial Judge did not consider properly and act on the admission of Claimant/Appellant that he re-surveyed the land upon purchase and that his surveyor discovered that the 1st Defendant/Cross-Appellant had encroached into his land and that he insisted that the entire portion of the land which is (sic) surveyor discovered belonged to him should be released to him and on the basis of this insistence he made Exhibit D and installed his beacons No. CJ 11330 and CJ 11329 at the boundary with 7up Bottling Company Plc.
2) The learned Trial Judge erred in law by failing to consider Exhibit Q and R after its various findings and wrongly held that the Defendant/Cross-Appellant had not proved trespass against Claimant/Appellant.
3) The learned Trial Judge erred in law by failing to evaluate properly all the evidents and Exhibits before him and make full finding of facts and appropriate inferences and thereby came to a wrong decision.
4) The learned Trial Judge erred in law by failing to consider and act on the admissions, Exhibits and evidence of the Claimant/Appellant which support the case of the 1st Defendant/Cross-Appellant and wrongly refused to grant the reliefs he sort in his counter-claim.
5) The Trial Judge erred in law by failing to consider and act on over-whelming evidence of Defendants that Claimant/Appellant’s certificate of occupancy Exhibit “A” was issued in error and upon fraudulent misrepresentation of facts by the Claimant/Appellant and the Trial Court ought to have granted the reliefs in the 1st Defendant/Cross-Appellant counter-claim.
6) The Trial Court erred in law by failing to evaluate, consider and act on the admissions and evidence of the parties that the Claimant/Appellant failed to exercise due deligence required of him in the purchase of his own part of the land and his negligence and lack of due care in the initiation of the suit against the 1st Defendant/Cross-Appellant.
7) The learned Trial Judge erred in law after its various findings, it wrongly ordered that the 2nd Defendant is to re-establish the proper boundaries between the land of the Claimant, as demarcated in the certificate of occupancy issued in his favour and the land of the 1st Defendant, as demarcated in the certificate of occupancy in his favour as shown, and delineated in the charting plans “A” and “B”.”

A close look at the above grounds shows that the complaint was about one and the same thing – evaluation of evidence by the Trial Court, which the Cross-Appellant faulted, saying that if the Trial Court had done it properly, it would have found the Appellant/Cross-Respondent liable for trespass and award the reliefs sought, that is, damages to the 1st Respondent, as per his counter-claim.

To that extent, it appears only the issue 2 by the Cross-Appellant would be relevant to this Cross-Appeal, i.e.:
“whether from the admissions , exhibits and evidence of the Claimant/Appellant which support the case of the 1st Respondent/Cross-Appellant before the trial court with specific findings of the trial court, judgment ought to have been entered on his counter-claim for damages for trespass and perpetual injunction against the Claimant/Appellant.”

Of course, issue 5 by the Cross-Appellant, in my opinion, carries the same import as issue 2, and so is repetitive of the same complaint, just as the whole 7 grounds appear repetitive of each other!

I shall therefore consider issue 2 as the only valid issue distilled from the 7 grounds of the Cross-Appeal. Issues 1, 3, 4 and 6 of the Cross-Appeal, rather sounded as deriveable from the Appellant’s grounds of Appeal, which 1st Respondent did not deem fit to file a brief. They therefore stand struck out as they did not derive from the Cross-Appeal, neither were they filed pursuant to the main Appeal.

Was the trial court wanting in the way it considered and appraised the evidence in the case, particularly the admissions by the Appellant that could have accrued profit to the 1st Respondent/Cross-Appellant?
Arguing the Cross-Appeal, E. O. Amadi Esq, who settled the brief, referring to page 302 of the Records of Appeal, said in paragraphs 3.25 and 3.26 of his brief:
“. . . after making some spectacular findings and pronouncements in favour of the 1st Respondent/Cross-Appellant that would have warranted granting damages and perpetual injunction against the Claimant/Appellant, the Trial Court failed to do so… The Judgment of the Trial Court was perceived to be largely in favour of the Claimant/Appellant, who did not exercise due deligence and bought land in the Government acquired area and developed same and after trial he was allowed to retain his land and developments, no payment of damages or injunction was granted against him, but surprisingly due to his inordinate ambition to subdue the 1st Respondent/Cross-Appellant and wrest his land from him, Claimant/Appellant was the first person to appeal against the judgment.”

I think that was neither a legal argument nor submission. Rather, the Cross-Appellant was fuming and musing, showing how his judgment would have been, if 1st Respondent’s Counsel were permitted to give the Ruling or to exact against his adversary! Of course, that feeling should be appreciated, 1st Respondent, being an interested party, prone to always think in his favour! That explains why the law insists on an impartial arbiter playing the judge, which I believe, the learned trial judge was.

It is good that, at least, the 1st Respondent appreciated that the learned trial court made “some spectacular findings and pronouncements in favour of the 1st Respondent…, before the court reached its conclusions! Thus, I think, the 1st Respondent/ Cross-Appellant was unfair to the learned trial court and was, in fact, contradicting himself, when he alleged, repeatedly, that the trial judge failed to consider and evaluate the evidence, including the admissions by the Appellant/Cross-Respondent!

The trial court, in my opinion, in fact, was very articulate and painstaking in analysing and evaluating the entire evidence, including the obvious errors of the Appellant/Cross-Respondent, who appeared to have caused the entire feud and bad blood, when he believed the suggestions of a total stranger (called by him to re-trace his beacons) that the 1st Respondent had trespassed on his land! He jumped to court on the basis of that speculation and fought, strenuously, as if he discovered the alleged trespass by himself. Meanwhile, the alleged surveyor who misled him was not called to testify and prove the trespass!

I think, the trial court was rather distracted by the unwholesome role played by the agent of the 2nd Respondent, one Mr. Ukariwe, a Director in the office of the 2nd Respondent, who, on the strength of the petition by the claimant (following the alleged discovery by his surveyor), visited the land and opted to settle them by dividing the portion of land in controversy between the disputing parties, a gesture which was rejected by the two sides! And after that wrong step, the 2nd Respondent issued certificate of occupancy to the Claimant in respect of his portion of the property (which, of course, was not in dispute).

Reviewing this role of the Director (the 2nd Respondent), the trial court held:
“To my mind, Mr Ukariwe, acting on behalf of the 2nd Respondent, having visited the land in dispute upon the Claimant’s complaint made in August 2011 and having made some decisions regarding the land, the 2nd Respondent re-validated the Claimant’s believe that he was in the land rightfully. Moreover, the certificate of occupancy in favour of the Complaint, Exhibit A, was issued after the visit by Ukare” (underlining mine). See page 299 of the Records.

No wonder then the trial Court, ordered the 2nd Respondent to re-establish the proper boundaries between the lands of the disputing parties, as demarcated in their respective certificates of occupancy and delineated in their survey plans A and B! See pages 302 to 303 of the Records of Appeal.

That means, there was a problem on ground as to the exact boundary between the Appellant and the 1st Respondent (Plaintiff and 1st Respondent), though each of them was duly acknowledged and recognised to be in valid possession of their respective distinct portions of their lands, on the two divides – Appellant in Umuelendu Village in Obingwa Local Government Area and the 1st Respondent in Umuola Egbelu Village in Aba North Local Government Area! Of course, the 2nd Respondent was at the centre of their quarrel, having issued the two certificates of occupancy, and was in a position to show their boundaries!

In such a circumstance, I greatly salute the fair mindedness of the learned trial judge, when she resolved that there was no trespass, either side, and so levied no award for trespass against any of the parties. She had said on page 302 of the Records:
“The 1st defendant also sued for trespass against the Claimant. However, by virtue of the charting plans, Exhibits V and W, no encroachment of the 1st defendant’s land by the claimant has been shown. By the charting plans, the portion of land covered by the 1st defendant’s said certificate of Occupancy, Exhibit N, with plan No. ABA(AB) 47, and the land of the claimant shown in plan No. OSN/AB179/75 (sic) annexed to Exhibit A, the Claimant’s certificate of Occupancy, which is supposed to be a reproduction of plan No. E/GA328/75, the plan on Exhibit B, the portions of land are independent of each other. The 1st defendant has not therefore proved trespass against the Claimant.”

I cannot therefore fault the decision of the Trial Court and so resolve the issue against the Cross-Appellant.
On the whole, both the Appeal and the Cross-Appeal fail and are hereby dismissed.
The Cross-Appellant shall pay cost to the Cross-Respondent, assessed at thirty thousand Naira (N30,000.00) only.
I had earlier ordered cost of fifty thousand Naira (N50,000.00) against the Appellant, payable to the 1st Respondent.

RAPHEAL CHIKWE AGBO, J.C.A.: I agree.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the advantage of reading the draft judgment of my learned brother, I.G. MBABA, JCA in this appeal.

My Lord has adequately dealt with the salient issues that arose from the Appeal and I adopt his reasoning and conclusions on all the issues.

Accordingly, I too hold that both the substantive and Cross-Appeals are devoid of merit and are according dismissed. I shall also abide by the Orders as to costs of N50,000.00 payable by the Appellant to the 1st Respondent and N30,000.00 against the Cross-Appellant payable to the Cross-Respondent.

Appearances

B. N. Ebebeke Esq For Appellant

AND

E. O. Amadi Esq 1st Respondent
B. A. Ozurumba (Mrs) 2nd and 3rd Respondents For Respondent