CHIEF NLEMCHUKWU NWANOSIKE & ANOR v. CYRIL UDENZE & ANOR (2016)

CHIEF NLEMCHUKWU NWANOSIKE & ANOR v. CYRIL UDENZE & ANOR

(2016)LCN/8510(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of April, 2016

CA/PH/69/2009

RATIO

EQUITABLE DEFENCES: THE PRINCIPLE OF LACHES AND ACQUIESCENCE
Now what are the implications and the position of the Apex Court on the principles of law popularly known as equitable defence against a Claimant by the Defendant. The principles have been settled and explained by the Apex Court the following cases thus:
1. ALHAJI SABALEMOTU KAIYAOJA & ORS. VS. LASISI EGUNLA (1974) 12 SC 55 at 65.
where DAN IBEKWE JSC held:
“It is hardly necessary for us to re-state here, the well-known fact that the equitable defences which are popularly known as “laches and acquiescence” derive from the equitable maxim “Delay defeats equities” or “equity aids the vigilant and not the indolent.” Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called “laches”. But that does not mean that laches consists simply of mere lapse of time. In our view, in order for the defence of “laches” to operate, such lapse of time must be coupled with the existence of circumstances which make it inequitable to enforce the claim. In the absence of such circumstances, delay will be immaterial. We wish however, to stress that no hard and fast rule can be laid down with regard to this aspect of the law, for each case will have to be determined with due regard to its own peculiar facts and the surrounding circumstances. It has been held that delay will be fatal to a claim for equitable relief if the Plaintiff has so acted as to induce the defendant to alter his position on the reasonable faith that the claim has been released or abandoned. See Allcard v. Skiner (1887) 36 Ch. D. 145. Also, where the delay may have resulted in the destruction or loss of evidence by which the Claim might have been rebutted, the doctrine has been invoked. See Bourne v. Swan and Edgar Ltd. (1903) 1 Ch. 211 at 219, 220.
2. LINUS OKEREKE & ANOR. VS. CHINYERE NWANKWO (2003) 4 SC (PART 1) 16 at 25 ? 26 per EDOZIE, JSC who said:
“The position of the law is that a party who sets up a defence of acquiescence, laches and standing-by must establish that the part against whom those defences are set up had notice of what was being done, that he did nothing to prevent it and that the position of the opposite party was being altered to his prejudice, or detriment or that he had been induced by the other party’s inaction to spend money. See Folani v. Cole (186) 2 NWLR (Pt. 22) 367, Kayode v. Odutola (2001) 5 S. C. (Pt.11) 118 (2001) 11 NWLR (Pt. 725) 659. In Abbey v. Ollenu (1954) 14 WACA 564 at 568, the West African Court of Appeal quoted with approval and adopted an adopted the dictum of Fry, I., in Willmoth v. Barber (1880) 15 Ch. D 96 at 106, which reads thus,
“It has been said that the acquiescence which will deprive a man of his legal right must amount to fraud and in my view that is an abbreviated statement of a very true position. A man is not to be deprived of his legal rights unless he had acted in such a way as would make it fraudulent for him to set up those rights.” PER PETER OLABISI IGE, J.C.A.
ARBITRATION: CONDITIONS FOR A VALID CUSTOMARY ARBITRATION
The Law is settled that a party wishing to rely on decision of a Native Arbitration Panel must plead adequately the matters relating to the arbitration and must show that the parties voluntarily submitted their grievances to the Arbitration Panel and there was the desire by the parties to be bound by the decision of the said Arbitration. The Respondent duly pleaded and relied on the Customary Arbitration Panel decision and duly tendered Exhibit G to show that the arbitrators reached a decision and published their award. All the Respondent was expected to do and prove are the following viz:
(a) That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons.
(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrations will be accepted as final and binding.
(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.
(d) That the arbitrators reached a decision and published their award and
(e) That the decision or award was accepted at the time it was made.
See: DR. C. O. OKOYE & ANOR VS. CHRISTOPHER N. OBIASO & ORS. (2010) 4 SCM 143 at 163 per ADEKEYE, JSC.:
(2) MR. MELFORD AGALA & ORS. VS. CHIEF BENJAMIN OKUSIN & ORS. (2010) 5SCM 23 at 49 D to 50 A-C per OGBUAGU JSC who said:
The conditions precedent to bindingness of a customary arbitration, are as follows:
(a) there must have been a voluntary submission of the disputes by the parties to the non-judicial body;
(b) the parties must have agreed to be bound by the decision of the non judicial body as final;
(c) that the decision was in accordance with the custom of the people or of their trade or business; and
(d) that the arbitrators reached a decision and published their award.”
See the cases of Awosile v. Chief Sotunbo (supra) (a), 532 citing the cases of Inyanz v. Essien (1957) SCNLR 112; Njoku v. Ekeocha (1957) SCNLR 112; Njoku v. Ekeocha (1972) 2 ECSLR 199; Idika & Ors. v. Erisi & Ors. (1988) 2 NWLR (Pt. 78) 563; (1988) 5 SCNJ. 208; and Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385; (1991) 4 SCNJ. 56. In this last case, Nnaemeka-Agu, JSC stated at page 533 inter alia, as follows:
“Parties to disputes will do well to remember that such persons or bodies though highly placed and respected are not judicial bodies. Before their decision on any matter in dispute between parties can be relied upon as estoppel, all the above requirements of a binding customary arbitration must be shown to have been observed. The pleadings and evidence in this case fall far short of those requirements. Once such is the position, the case must be decided on the relative strengths of other facts established by evidence.” PER PETER OLABISI IGE, J.C.A.
ARBITRATION: BINDING EFFECT OF CUSTOMARY ARBITRATION
The decision of the Arbitration Panel has effectively created estoppel as between the parties and their privies, including the appellants in this appeal over the subject matter of the appeal. They cannot walk out of it. The reasonable inference to draw from Exhibit G is that the parties to it eminently evinced the intention to be bound by the decision of the Arbitration Panel. See: the cases of:
(1) MICHAEL IFEANYI OJIBAH VS UBAKA OJIBAH (1991) 6 SCNJ 156 at 169 where NNAEMEKA-AGU, JSC said:
“In my view, the law is pretty settled that where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to customary Law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding then once the arbitrators reach a decision. It is no longer open to either party to subsequently back out of such a decision.”
(Underlining mine).
(2) CHUKWUDOZIE ANYABUNSI VS EMMANUEL UGWUNZE (1995) 6 NWLR (PART 401) 255 at where IGUH, JSC held firmly thus:
“It is also in evidence that both parties consented to this customary arbitration, submitted themselves to this body and together with their witnesses testified before the elders. The trial Court found it established, and this was affirmed by the Court below, that this customary arbitration ended in favour of the respondent’s family. This finding is that the Land was adjudged to belong to the respondent and the appellant was asked to resume payment of his tributes to the said Respondent.
It cannot be over emphasized that where two parties to a dispute as in the present case, voluntarily submit their matter in controversy to an arbitration according to customary Law and agreed whether expressly or by implication; that the decision of the arbitrators would be accepted as final and binding, then once the arbitrators reach a decision it will no longer be open to either party to subsequently back out of such a decision. A party rejecting such a decision must prove that it was wrong in principle. See Michael OJIBAH V. K Ubaka Ojibah (1991) 22 NSCC (PT. 2) 130; (1991) 5 NWLR (Part 191) 296 and Omanhene Kobina V. Akese W.A.C.A. 1 at 2. (Underlining mine). PER PETER OLABISI IGE, J.C.A.
ADDRESS OF COUNSEL: WHETHER ADDRESS OF COUNSEL CAN AMOUNT TO EVIDENCE
Counsels address cannot by any stretch of imagination be equated with solid evidence required to establish allegations of crime against an adversary in Civil Proceedings. PER PETER OLABISI IGE, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

1. CHIEF NLEMCHUKWU NWANOSIKE
2. NZE EMEZIENNA NWANOSIKE Appellant(s)

AND

1. CYRIL UDENZE
(For Himself and on behalf of Members of Udenze Family of Umuobana Ugbele Mgbidi Oru-West L.G.A. Imo State)
2. OKORIUKWU IGWIRI Respondent(s)

PETER OLABISI IGE, J.C.A.(Delivering the Leading Judgment): This appeal is against the decision of IMO STATE HIGH COURT MGBIDI JUDICIAL DIVISION contained in the judgment of HON. JUSTICE F. I. DUROHA-IGWE delivered on the 7th day of March, 2008.

The Appellants who were the Claimants in Suit HOU/53/96: CHIEF NLEMCHUKWU NWANOSIKE & ANOR. VS. PRINCE CYRIL UDENZE & ANOR by their Writ of Summons issued by the said Court on the 18th day of September, 1996 claimed against the Defendants now Respondents as follows:
“A. A declaration that the Plaintiffs are entitled to the Statutory Right of Occupancy over the piece or parcel of land verged green in Plan No. TOP/IMD/02/97 dated 14th October, 1996 and lying and situate along Igwegbe Street, Ugbele Mgbidi in Oru West Local Government Area Imo State.
B. One Million Naira (N1,000,000.00) damages for trespass on the Plaintiff’s (sic) land from December, 1990 to September, 1996.
C. Perpetual Injunction restraining the Defendants by themselves, their servant’s representatives (sic), agents and privies from further trespass on the land.”

The Defendants

now Respondents also instituted action against the Appellants. The endorsement(s) on their own Writ of Summons in Suit NO. HOU/61/96 show that they are claiming as follows:
“A. A declaration that the 1st Plaintiff is entitled to the Statutory Right of Occupancy over that piece or parcel of land known as and called UHU OJIAKU, while the 2nd Plaintiff is so entitled over that piece or parcel of land known as and called ALA IGWIRI. Both lands situate at Ugbele Mgbidi in Oru West Local Government Area of Imo State.
B. One Million Naira (N1,000,000.00) being for damages for trespass.
C. Perpetual injunction restraining the defendants by themselves, agents, servants and privies from further acts of trespass over the said land.”

The two actions were later consolidated. By Order of the Lower Court on 11th March, 2002 the two Suits/actions were consolidated.

The Suits later proceeded to trial and on the 7th day of March, 2008, the trial Judge found against the appellants as follows:
In dealing with Issue No. 3 I had also dealt with this Issue. I need not recount what I said under Issue No. 3 here. Suffice it to say that

Plaintiffs have not proved their case. I therefore resolve this Issue (5) in favour of the 1st Defendant and against the Plaintiffs. Plaintiffs cannot maintain an action for trespass against the Defendant when they were on the Land or in possession through a pledge. Rather, Plaintiffs trespassed after the redemption. Plaintiff action therefore fails in its entirety.”

In respect of the Respondents Suit NO. HOU/61/96 the trial Judge held:
(1) I hereby declare that 1st Plaintiff (in HOU/61/96) is entitled to the Statutory Right of Occupancy over that piece or parcel of Land known as and called UHU OJIAKU Land.
(2) One Million Naira (N1,000,000.00) being damages for trespass against the Defendants to the 1st Plaintiff.
(3) I hereby perpetually restrain the defects by themselves, against servants and privies from further acts of trespass over the said land. (sic) I award cost of N5,000.00 to the 1st Plaintiff (in HOU/61/96) against the Defendants.

Dissatisfied with the said judgment, the Appellants filed Notice of Appeal dated 8th day of March, 2008 on 10th day of March, 2008 consisting eleven (11) grounds of appeal. The eleven

grounds of appeal and without their particulars are as follows:
3. GROUNDS OF APPEAL:
1. The trial Judge erred in law in delivering judgment in the consolidated suit nine months (273 days) after conclusion of evidence and final addresses in contravention of the provisions of Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999, and that occasioned a miscarriage of justice.
2. The trial Judge erred in law in holding that the 1st Defendant/Respondent?s Suit HOU/61/96 in the consolidated suit is not statute-barred.
3. The trial Judge erred in law in holding that the land in dispute (UHU OJIAKU) was on pledge and had been redeemed when the alleged pledge and redemption were not proved.
4. The trial Judge erred in law in resolving and concluding the existence of pledge of the land in dispute (UHU OJIAKU) to Titus Akunna and redemption of same from Titus Akunna, and awarding the land to the 1st Defendant/Respondent, without Titus Akunna or his estate being made a party to the 1st Defendant/Respondent?s suit, and in rather holding that the Plaintiffs/Appellants were bound to call Akunna?s family

members to testify.
5. The trial Judge erred in law in entertaining the Defendants/Respondents’ Suit HOU/61/96 in the consolidated suit and dismissing it in view of Order 11 Rule 1 of the High Court of Imo State (Civil Procedure) Rules 1988, and in the way and manner she repaired the damage in a bid to make the case of the 1st Defendant/Respondent survive the inherent and fundamental defect.
6. The trial Judge erred in law in failing or refusing to consider the Plaintiffs/Appellants’ defences of laches, acquiescence and standing-by, and that occasioned a miscarriage of justice much as, it amounted to a denial of fair hearing.
7. The trial Judge erred in law in failing or refusing to consider the issue of locus standi or standing of the 1st Defendant/Respondent to institute his suit or assert any rights over and in respect of the land in dispute he not being a son of Udenze Unaji, and thus failed to dismiss the suit.
9. The trial Judge erred in law in giving judgment to the 1st Defendant/Respondent on his claims in HOU/61/96 when the same were not proved.
10. The trial Judge erred in law in holding that the

Plaintiffs/Appellants did not prove title to the land in dispute (UHU OJIAKU) and in dismissing their claims.
11. The damages awarded by the trial Judge is unfounded and excessive in the whole circumstances of the case.
12. Judgment is against the weight of evidence.

The Appellants filed their Amended Brief of Argument dated 2nd March, 2009 filed on 3rd day of February, 2015. The Respondents filed their own Brief of Argument dated 4th day of February 2015 on 20th day of February 2015. Thereafter the Appellants filed Appellants’ Reply Brief dated 15th day of April, 2015 on same date. The appeal was heard on 25th January, 2016.

The Counsel to the parties in this appeal adopted their Briefs of Arguments. The Appellants distilled six Issues for determination of the appeal herein which are:
(i) Whether the judgment of the trial Judge is not a nullity and ought not to be set aside by reason of its delivery in contravention of the provisions of Section 294 of the Constitution of the Federal Republic of Nigeria 1999. (Ground 1 of Appeal).
(ii) Whether the trial Judge was right in holding that the 1st Respondent’s Suit

(HOU/61/96) is not statute-barred. (Ground 2).
(iii) Whether the Respondents’ Suit HOU/61/96 as brought is not incompetent, an abuse of Court process and unmaintainable in law and was the trial Judge right in the way and manner she disjoined the Respondents (as plaintiffs) and repaired the damage to give judgment to the 1st Respondent. (Ground 5).
(iv) Whether the defences of laches, acquiescence and standing-by do not avail the Appellants in the whole circumstances of this case and did their non-consideration by the trial Judge not occasion a miscarriage of justice.
(v) Whether the trial Judge was right in holding that Exhibit ‘G’ in the consolidated suit (the purported Umuobana Obilator native arbitration) is admissible, relevant and binding on the Appellants (Ground 8).
(vi) Who, as between the 1st Respondent and the Appellants, proved to be entitled to judgment of Court. (Grounds 3, 4, 9, 10, 11 & 12).”

The Respondents on their part nominated five (5) issues for determination which are:
1. Whether the judgment appealed against is a nullity on the grounds of its delivery after the 3 months

period provided for by Section 294(1) of the 1999 Constitution (as amended) (Ground 1).
2. Whether the respondents cross action in Suit No.: HOU/61/96 is statute barred having regard to the evidence before the Honourable Court (Ground 2).
3. Who as between the appellants and the respondents established better title to the land in dispute (Grounds 3, 4, 9 & 10).
4. Whether the respondents Suit No.: HOu/61/96 is not competent (Grounds 5 and 7).
5. Whether having regard to the respondents claims that the land went from the 1st Respondent’s father on pledge to one Titus Akunna, their claim in Suit No.: HOU/61/96 can be said to be statute-barred or caught by the doctrine of laches and acquiescence (Grounds 2 and 6).

It is germane or pertinent here to state that the Respondent incorporated a NOTICE OF PRELIMINARY OBJECTION into their Respondents Brief of Argument and argued same from pages 2 paragraphs 2.03 to 3 paragraph 2.10 of the Respondents Brief. The Appellant addressed the points in the Preliminary Objection in paragraphs 1.1-.2 of the Appellant(s) Reply Brief of Argument.

The gravamen of the Objection

could be seen in paragraphs 2.01 of and 2.02 of the Respondents Brief thus:
?2.01 The Respondents shall on or before the hearing of this appeal challenge the competency of Issue No. 3 as formulated and argued by the Appellants. The Appellants? Issue No. 3 is vague and largely unintelligible. Therefore, Issue No. 3 as formulated at page 2 of the appellant appeal is incurably defective for being vague, imprecise, argumentative and largely unintelligible. We urge that same be struck out.
2.02 On the other hand, issue No. 4 was not tied to any ground of Appeal.?

This Court will therefore take the Issue concerning Notice of Preliminary Objection first.

In his argument, the Learned Counsel to the Respondents, L. M. Alozie Esq. submitted that when an Issue for determination is not distilled from a ground of appeal, that Issue is incompetent and must be discountenanced. He cited a number of cases including UKPO VS. IMOKE (2009) 1 NWLR (Pt. 1121) 90 at 129 D.

He therefore urged this Court to strike out Issue 3. That Issue No. 4 is not tied to any ground of appeal hence it is incompetent. He urged the Court to discountenance

the Issues impugned and arguments on them. He also argued that grounds 5 of the Notice of Appeal is vague and incompetent and should be struck out. He relied on the cases of:
1. KHALIL VS. YAR’ADUA (2003) 16 NWLR (Pt. 847) 448 at 478-479.
2. AGBAJE VS. YOUNA (1974) 3E CSCA 64.
3. CBN VS. OKOJI (2002) 8 NWLR (PART 768) 48 at 53.
4. ODUAH V. FRN (2012) ALL FWLR (PT. 650) 1348 at 1360 E-G.
5. MOJEKWU VS. MOJEKWU (1997) 7 NWLR (Pt. 512) 283 at 292 B-?D.

The Learned Counsel to the Respondents also contended that ground 7 of the grounds of appeal does not arise from the judgment of the Court and is therefore incompetent. He urged this Court to strike it out.

In his Reply to the arguments on the Notice of Preliminary Objection, the Learned Counsel to the Appellant F. O. A. Nwanosike Esq. contended that Issue 3 is quite apt and straight forward. That it is glaring that Issue No. 3 is distilled from ground 5 of the grounds in the Notice of Appeal. On the complaint that Issue No. 4 was not tied to any ground of appeal, the Learned Counsel to the Appellants opined that Issue 4 is tied to ground 6 of the

grounds of appeal. On the contention of Respondents that ground 7 of the grounds does not arise from the judgment of the High Court, the Appellants Learned Counsel insisted that ground 7 actually emanated from the judgment of the Lower Court and relied on pages 325-336 of the record read along with the particulars in the said ground 7. That the Respondents who queried grounds 5 and 7 actually formulated Issues from those grounds.

There is no doubt that the Law is settled that Issues formulated for determination of an appeal must be concise and must be distilled from a ground or grounds of appeal.

It is also settled that a ground or grounds from which Issue or Issues is/are formulated must be competent. A ground of appeal must also emanates from ratio decidendi of a judgment appealed against.
The Law also needs no restatement that any Issue raised for determination by a Respondent must arise from the grounds of appeal.
I call in aid the decision of the apex Court in the case of:
OZURUMBA NSIRIM VS. DR. SAMUEL N. AMADI (2016) 5 NWLR (PART 1504) 42 at 60 B-C per ONNOGHEN JSC who said:
“An Issue or termination must

arise from the grounds of appeal relied upon.see: Nwanezie vs. laris (1993) 3 NWLR (Pt. 279) 1 at 12. Therefore, when an issue(s) as formulated be not based on the ground of appeal filed, the legal effect is that it is/are on that account irrelevant.”
And on the same page 60 H to 61 A his Lordship ONNOGHEN JSC continues,
It is settled Law that issues in appeal can only validly arise from the grounds of appeal or cross appeal and that where an issue or issues for determination does/do not arise from the grounds of appeal, such an issue(s) is/are incompetent and liable to be struck out.”
Further on page 61 C His Lordship further said:
No one is saying that a respondent in an appeal cannot raise an issue for determination of the appeal either on jurisdiction or otherwise but that the issue(s) so raised must be anchored in the grounds of appeal which must in turn arise from the ratio in the judgment on appeal otherwise the issue(s) formulated is/are grossly incompetent. The reason, simply is that the judgment of a Court of law is presumed valid and subsisting unless set aside by an appellate Court of competent

jurisdiction upon a proper appeal or cross appeal.

I have perused the issues formulated by the Appellants vis-a-vis the grounds of appeal and there is nothing vague in the manner Issue 3 is couched. I agree that issue No. IV is not tied to any ground of appeal. It is therefore preposterous for the Appellants to outlandishly argue and without qualm to insist it was tied to ground 6. Issue No. IV deals with defences of laches, acquiescence and standing by. The first time it would be shown or mentioned that issue 4 is tied to ground six is in Appellant’s Reply Brief paragraph 1.25. If anything it is Appellants who had acted in a bizarre manner instead of owning up that it did not tie issue four to any ground of appeal. It is glaring on page 1 of the Brief of Appellant that Issue four is not tied to any ground. There is more honour in accepting one’s mistake than to engage in unnecessary mud-slinging at one another as Legal Practitioners in the quest for justice in matters being handled for clients.

However I will not strike out issue No.4 on account of failure of Counsel to tie it to a particular ground having in the course of

reply to the Notice of Preliminary objection mentioned that the issue is rooted in ground 6 of the Appellants appeal. On whether ground 5 of the Appellant?s appeal is competent, I am of the view that a community reading of the said ground 5 along with its particulars make the said ground competent and not incompetent. As to whether ground 7 of the Appellants appeal arises from the judgment appealled against, I am of the view it does. The issue as to whether 1st Defendant in Suit HOU/61/96 has locus standi is a question of jurisdiction that can be raised at any stage of the proceeding.
Consequentially the Notice of preliminary objection is dismissed as lacking in merit.

Now to consideration of the appeal on the merit. I have earlier on in this judgment reproduced the issues raised for determination by the Appellants as well as the Respondents. I am of the solemn view that this appeal can be determined on the issues formulated by the Appellants. I will treat them seriatim.

ISSUE 1
WHETHER THE JUDGMENT OF THE TRIAL JUDGE IS NOT A NULLITY AND OUGHT NOT TO BE SET ASIDE BY REASON OF ITS DELIVERY IN CONTRAVENTION OF THE PROVISIONS OF SECTION

294 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999. (GROUND 1 OF APPEAL).

The Learned Counsel to the Appellant F.O.A NWANOSIKE Esq. stated that an appellant seeking to set aside the judgment of a Lower Court for being unconstitutional or in breach of the provisions of Section 294 of the Constitution has to prove only two things which he listed as follows:
(1) That the judgment was delivered more than 90 days after the conclusion of evidence and final addresses of Counsel and
(2) That the Appellant has suffered a miscarriage of justice by reason of the delay in delivering the judgment.

That the judgment in this case was delivered 273 days after the conclusion of evidence and final addresses in breach of the Constitution. That the final addresses were done on 8/6/07 while judgment was delivered on 7/3/2008. He relied on pages 324 -336 of the record.

He submitted that Appellants have suffered miscarriage of justice for failure to deliver the judgment within the time provided. On what miscarriage of justice entails, the Learned Counsel cited the decision of this Court in YARDI Vs. SALABARU (2001) 3 NWLR (Pt. 699) Ile at 24

C-D.

That the trial Judge commenced by jumbling up exhibits tendered by parties. That the said plaintiffs (Appellants) tendered three Exhibits i. e. A, B and C while Defendants tendered four Exhibits D, E, F AND G(page 327 of Record). That the true position is that it was the appellants that tendered four Exhibits A, C, D, and F while Respondents tendered Exhibits B, E and G. He relied on pages 130, 138, 137, 215, 222-223 and 239 of the Record. That the trial Judge thus mistaken some of the exhibits tendered by Appellants as having been tendered by Respondents. That the trial Judge failed thereby to understand the combined effect of Exhibits C, D and F tendered by Appellants and their applications or bearing on the case(s) of the parties which all show according to appellants that by virtue of Exhibits C, D and F, Appellants had shown that the alleged redemption

of the alleged pledge of the land in dispute from TITUS AKUNNA by UDENZE family had not been done by 1993 and ever afterwards let alone 1987 as claimed by 1st Respondent only under cross examination.

That the error on the part of the trial Judge made it impossible for trial Judge to appreciate the case of the parties and that the judgment is one classical case of Wishy-Washy Judgment. That the trial Judge also forgot and failed by effluxion of time to appreciate the issues or defenses of laches, acquiescence and standing by raised by the Appellants. That she also forgot the issue of locus standi of the 1st Respondent in instituting Suit No. HOU/61/96 in the consolidated suit relying on paragraph 12 pages 296-297 of the record. That the Judge did not deal with the issue and thus has forgotten or failed to appreciate the issues in controversy. He relied on the cases of:
1. OKONKWO Vs. UDOH (1997) 9 NWLR (PART 519) 16 at 20-21 H- A.
2. ONAGORUWA Vs. STATE (1993) NWLR (PART 303) 49 AT 104 DE.
3. AGU Vs. NNADI (2002) 18 NWLR (PART 798) 103 at 119 E.

That the trial Judge forgot that he had ruled in the course of trial that

the objection of appellants against the institution of HOU/61/96 by Respondent was premature and so the appellants raised the issue in their final address only for the trial Judge to state in her judgment that the issue of incompetence of Suit HOU/61/96 was not timeously raised. The Appellants attributed this to forgetfulness on the part of the trial Judge due to the inordinate delay in delivery of the judgment.

That the judgment all through shows that the trial Judge did not read the record. The Appellants even submitted thus at paragraph 5.1.17 of their Brief:-
“We submit and we urge the Court of Appeal to agree that a possible danger of non-delivery of judgment within the constitutional period is that once a judge is out of time, pressure and embarrassment may set in especially in case as in this where the delay had already become inordinate. In such situations we also urge the Court of Appeal to agree that a judge’s mind is no longer stable or relaxed and this is bound or possible to lead the judge into avoidable errors and/or force the judge to write ‘judgment’ whether or not the same meets the justice of the case at

hand.”

They therefore urged this Court to hold there was a miscarriage of justice against Appellants by the inordinate delay of the trial Judge to deliver his Judgment.

In response to the submissions of the Learned Counsel to Appellants, L.M. Alozie Esq., drew the attention of the Court to the manner the Appellants Learned Counsel abused and insulted the trial Court in breach of Rule 31(I) of Rules of Professional Conduct.

That the Appellants Counsel lost sight of Section 294 (5) of the Constitution as it was not the Appellant’s case, that the late trial Judge did not capture the contents of the documents nor the probative or evidential value thereof. That it is erroneous for the Appellants to contend that the trial Judge did not properly evaluate the evidence due to lapse of time. That the errors complained of must be apparent on the face of the record. He relied on the case of NBC Vs OKWE JIMI (1998) 8 NWLR (PART 561) 295 C-F.

That before a judgment delivered outside 3 months constitutional period could be set aside, the Appellant must establish that he has suffered miscarriage of justice. He relied on the cases of

LAWAL Vs. QUADRI (2004) 4 NWLR page 4, EGWU VS EGWU (1995) 5 NWLR (PART 396) 493 at 505 ? 506. That in the instant case, the judgment of the trial Court was not based on the Court?s impression of the witnesses but rather on credible evidence duly received at the trial. That it is not enough to say the judge made mistake in ascribing and?tendering of some evidence to parties who did not tender them, that the Appellant must show that the trial Judge did not read those exhibits or that different meanings were assigned to their contents. That the five issues for determination in the case was whether the land in dispute which according to Respondent, the appellants admitted originally belonged to the first Respondent?s family was sold by the 1st Respondent?s father or pledged by him to AKUNNA from whom the appellants?claimed they derived their title to the land. That the central issue for determination was not even whether the land had been redeemed or not.

That the issue is also not who tendered exhibits but who owned the land in dispute. That the central issue was not lost hence according to Learned Counsel to the Respondents, all the mud

thrown at the trial Court is clearly mischievous and untenable. That on joinder or misjoinder there is a distinction between irregularity in proceedings such as misjoinder or nonjoinder of parties and incompetence which robs the Court of jurisdiction. This Court is urged to hold that no miscarriage occurred and that failure to deliver the judgment within three months is not fatal to the judgment.

Now a miscarriage of justice simply means judgment or order of a Court rendered in flagrant breach of the right to fair hearing and a perverse decision against a party in proceeding which if not set aside will amount to a denial of justice to the party affected. See OLUSOLA ADEYEMI Vs. THE STATE (2014) 11 SCM 1 at 20 SC where PETER ODILI JSC said:
?To maintain the link in the discourse is to define what miscarriage of justice is which would render a Court of Appeal without option than to intervene and set aside what the Lower Court had done. Black?s Law Dictionary 8 Edition at page 1019 defines miscarriage of justice thus:-
?A departure from the rules which permeate all judicial procedure as to make that which happened not in the

proper sense of the word judicial procedure at all.? See Nnajiofor v. Ukonu (1986) 4 NWLR (Pt. 36) 505.?
It however depends on facts and circumstances of each case. See DENNIS AKOMA & ANOR VS OBI OSENWOKU & ORS (2014) 11 NWLR (PART 1419) 462 at 497 E per BODE RHODES ? VIVOUR JSC who said:
?Now, miscarriage of justice usually depends on the circumstances of the case. There would be miscarriage of justice when an error can be seen in the Proceedings/Judgment, and had it not been for the error a decision more favourable to the party that lost would have been given. There is a miscarriage of justice when the decision given is inconsistent with established rights of the party complaining?

The Appellants stance is that they have been prejudiced and a miscarriage of justice committed against them. They called for nullification of the judgment for being a breach of Section 294 of the Constitution.

Section 294 of the Constitution of the Federal Republic of Nigeria 1999 as amended enjoined all Courts established by the Constitution mandatorily to ensure that judgment is delivered in a matter 90 days after the

hearing of address by the parties. The said Section 294 of the Constitution of Nigeria 1999 provides as follows:
?294 (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery hereof.
(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
(4) For the purpose of delivering its decision under this Section, the Supreme Court, or the Court of Appeal

shall be deemed to be duly constituted if at least one member of that Court sits for that purpose.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
There is no doubt, as stated by the provisions of the Constitution just reproduced that where a party complaining can show that the delay in delivery of the judgment makes the party to suffer a miscarriage of justice, Section 36(i) and Section 294(5) of the 1999 Constitution of the Federal Republic of Nigeria as amended will be invoked by the appellate Court to treat the judgment impugned as a nullity.

The Appellants have the onerous duty to prove the miscarriage inherent in the judgment due to the time lag in the delivery of the judgment and the miscarriage suffered thereby.
I will call in aid the recent decision of the apex Court in the land in the case of DENNIS AKOLMA 7& ANOR VS OBI

OSENWOKU & ANOR (2014) 11 NWLR (PART 1418) 462 at 487-488 E-H per GALADIMA JSC who said:
“On issue No.1 certain facts are not at all in dispute, having been legally provided established and/or conceded. The facts are as follows:
First, the fact that Section 294 (1) of the 1999 Constitution makes it mandatory for a Court to deliver its judgment within 90 days after final address, and that by Section 294 (5) of the same Constitution, a judgment will not be invalidated or nullified for non-compliance unless and until the appellate Court considering such a complaint on appeal is fully satisfied that the Appellant has shown that it had suffered a miscarriage of justice by such late delivery of judgment. Further the fact that in determining whether a miscarriage of justice has occasioned due to inordinate delay, the emphasis is not on the length of time simpliciter, but on the effect it produced in the mind of the Court, such as if the delay is found to have obviously allege (sic)s the Court’s perception, appreciation and evaluation of the cases and that this Court would readily interfere.
In view of the foregoing, I

find it appropriate to resort to the provisions of the relevant Subsections of S. 294 of the 1999 Constitution of the Federal Republic of Nigeria.”
Section 294(1); Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of Subsection (1) of this section, the person presiding at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial

council who shall keep the council informed of such action as the council may deem fit.
The true position of the law, in the light of the foregoing provision, is that a party should not just go on appeal merely on the ground that the judgment he wants to set aside was delivered outside the three months (90 days) period. He will have to fight the appeal on all two grounds of appeal which can render the judgment unsustainable not merely on the assessment of facts. Indeed, an appellant with good grounds of appeal may have no need at all to canvass a ground of non compliance with the 90 days except for the purposes of having the judge (or justice) disciplined by drawing attention of the breach to the Court hearing the appeal in view of Subsection 6 of Section 294 of the 1999 Constitution (formerly Subsection 5 of Section 258 of 1999 Constitution). See OWOYEMI V. ADEKOYA (2003) 12 SC (Pt.1)
1. The delay per se does not lead to a judgment being vitiated or nullified. The delay must occasion a miscarriage of justice, in that the trial judge did not take a proper advantage of having seen or heard the witnesses to testify or that he had lost his impressions

of the trial due to such inordinate delay. See AKPAN V. UMOH (1999) 7 SC (Pt. II) 13; (1999) 1 NWLR (Pt. 627) 349.”

I have carefully gone through the record and I have read the judgment delivered by the trial Court and I am certain in my mind that the innocuous mix up by the trial Judge concerning the exhibits and the party that tendered them has not impacted negatively against any of the parties to this appeal in the judgment of the Learned trial Judge.

I am also of the view that the slip did not in any way impair the vision and findings of the trial Judge on the vexed issue of whether there was pledge or redemption of the land pledged to TITUS AKUNNA by UDENZE family. I have read the judgment of the Learned trial Judge particularly record and I have no doubt in my mind that the Appellants and their Counsel are definitely wrong in their contention and erroneous belief that the judgment of the learned trial Judge was/is a product of warped and unstable mind. In my judgment the judgment flows logically and it is lucid. I do not think the Lower Court deserved the virulent and damnifying onslaught and unnecessary indulgence by Learned Counsel to

Appellants in denigrating the integrity character and person of the Learned trial Judge all in a bid to have the judgment set aside. The Appellants can pursue their appeal without casting aspersion on the person of the trial Judge. After all Appellate Courts are put in place by the Constitution of the country to right or remedy the wrongs an Appellant may believe had been done to him or her in the judgment appealed against.

I am not unmindful of the complaint of the appellants that the trial Judge seemed to have forgotten that he ruled against the appellants in her Ruling of 3/4/2001 on their application to have Suit HOU/61/96 terminated for misjoinder of action and parties. That the same judge who ruled that the matter should be addressed later in the proceedings turned round in her judgment to say that Appellants did not act timeously in addressing the issue in their final Address before the trial Judge.

I have read the Ruling of the Learned trial Judge on pages 157-161 of the record and I do not find anything in the Ruling directing the Appellants as submitted by them in this Court, directing them to raise the issue of the competence or

otherwise of HOU/61/96 at the end of hearing of the case or the final Address of Appellants. The Learned trial Judge said in his Ruling of 3/4/2001 thus:
“There is a temptation on my part to proceed to consider the Order 11 Rule 1 and Oni?s case (supra) with the view to deciding this application one way or the other. However, I must resist this temptation as there will no justification on my part for ignoring the Learned Counsel for the respondent submission that the application before me is demurer proceeding which has been abolished by our Order 24 Rule 1.
Applicants Counsel did avert his mind to Order 24 Rule 1 while addressing me.
On points of laws, he submitted that complaint about irregularity must be timeously made before taking subsequent steps ? filling of Statement of Defence inclusive. I concede that this is the law more especially in States whose Rules of Court permit demurer proceedings. See the case of Akpan V. Utim (1990) 39 LRCN 1187;Ratio 6. It is pertinent at this stage to reproduce on Order 24 Rule 1 and 2. Order 24 Rule 1 No demurer shall be allowed.”
Rule 2? ” Any party shall be

entitled to raise by his pleading any point of law, and any point so raise will be disposed of by the Judge who tries the cause at or after the trial.
Provided that by consent of the parties, or by Order of Court or a Judge. On the application of a party, the same may be set down for hearing and disposed of at any time before trial?.
Order 24 Rule 1 is very emphatic ? No demurer shall be allowed?. It follows therefore that to bring an application of this nature, applicant is expected to do it in his pleadings which can be taken before trial.
Supreme Court in the case of Mobil Oil Nig. Plc vs. IAL 36 INC (2000) 77 LRCN 318 Ratios 1 and 2 recognises that demurer has been abolished in several jurisdictions in the country but that some including the Federal High Court still retain it.
Based on Federal High Court Rules, they held that demurer is raised by motion and if the plea fails that the defendant is called upon to plead to the facts.
However, Applicant cannot rely on this authority or any similar one because our jurisdiction has abolished demurer proceedings.
I have no difficulty whatsoever in holding that this

application is not properly before this Court. I hereby strike it out.
Having held that this application is not properly before me, it will be an exercise in futility to consider the points raised by the applicant in bringing this application.
Application is struck out. I make no order as to costs.
(SGD):
F. I. DURUOHA-IGWE
(JUDGE)
3/4/2001.”

The highest said by the trial judge was that the issue could be taken before filing a defence in States where demurrer has not been abolished and even then the point of law must be pleaded in the pleading of the party wishing to take it as a point of law before trial. The trial Judge made it clear that demurrer was no longer permitted in Imo State.

In any event the appellants did not draw attention of the trial Judge to any part of their pleadings where they raised it. I have gone through the tedium to bring to the fore that there is no miscarriage of justice.

Much as one will not encourage any Judge to wait for 273 days to deliver his judgment, such judgment will not be set aside or torpedoed without concrete evidence of miscarriage of justice. I do not see

any miscarriage of justice caused by the delay and failure of learned trial Judge in this case to deliver his judgment within 90 days.
Issue one is resolved against the Appellants.

ISSUE NO. 2
WHETHER THE TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE 1ST RESPONDENT?S SUIT (HOU/61/96) IS NOT STATUTE ?BARRED.
The Learned Counsel to the Appellant F. O. A. NWANOSIKE Esq. submitted that the trial Judge was wrong in holding that 1st Respondent?s Suit No. HOU/61/96 is not statute barred under the provisions of the High Court Law Cap. 61 Vol. IV Laws of Eastern Nigeria 1963 and or the Limitation Law 1994 of Imo State.

That the Learned trial Judge lacked the jurisdiction to entertain the action. He relied on Section 15 of the High Court aforesaid to contend that no action can be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or through whom he claims when the right first accrued to that person. He relied on the case of P. N. UDDOH TRADING CO. LTD. VS. ABERE (1996) 8 NWLR (Pt. 467) 479 CA and P. N. UDDOH TRADING CO. LTD. VS. ABERE (2001) 11 NWLR

(PART 723) 114 SC.

That Suit HOU/61/96 filed on 18/11/96 by 1st Respondent was filed to recover land in dispute from Appellants whose adverse possession thereof arose in 1943 according to paragraph 39-43 of the Statement of Claim in HOU/61/96 page 97 of the record. He also relied on Section 9 of Limitation Law of Imo State 1994. That cause of action had accrued to Lolo Akukananwa Udenze through whom 1st Respondent Claims. The Learned Counsel also relied on paragraph 43 of the said Statement of Claim. That since 1943 no action was taken until 1996 against the Appellants. That by 1955 the right of action by 1st Respondent was lost for ever over the land. That whatever title the 1st Respondents family-Udenze family has in the land in dispute was extinguished in 1953 or 1955.

That the learned trial Judge committed to so many errors in her conclusion that the action is not statute barred due to misconception on facts and the applicable law. He relied on the case of OLORUNFEMI VS. ASHO (2000) 2 NWLR (Pt 643) 143 and Dawodu v. Majolagbe 2001) 3 NWLR (Pt. 703) 234.
That the trial Judge was wrong in relying on the case of MAJEKODUNMI VS.

ABINA (2002) 3 NWLR (Pt. 755) 720 to hold that Limitation Laws do not apply to lands held under native Law and Custom. That that case is concerned with Section 68 (1) of Limitation Law of Lagos State and has no general application.

That the trial Judge took it for granted that there was a pledge which was redeemed in 1987. That that fact was never proved at the trial. He relied on Sections 10 and 13 of Limitation Law as casting a burden on 1st Respondent to proof the pledge pleaded and that 1st Respondent did not prove it. He relied on the case of NDORO V. RANWIL (2003) 5 NWLR (Pt. 812) 137 among other numerous cases on purport and intendment of Limitation Laws. He also relied on evidence of the 1st Respondent under cross-examination and insisted the cause of action arose in 1943 but that the 1st Respondent brought HOU/61/1996 53 years after.

?In response to the above submissions, the Learned Counsel to the Respondents L. M. Alozie Esq. referred this Court to pages 92-101 of the records containing the Statement of Claim in HOU/61/96. That the pleading and evidence shows clearly that the land was pledged from 1st Respondents father to one Titus Akunna

of Oru East Local Government Area. That it was Titus Akunna that handed over the land in dispute to Appellants father as caretaker. The learned Counsel also went to state that the Appellant’s father claims to have bought the land from Titus Akunna a literate man who was clerk of Court. That pursuant to Section 4 of the Statute of Fraud the transaction must be in writing. He relied on the case of DANTATA V. MOHAMMED (2012) 14 NWLR (PART 1319) 122 at 157-157 (sic).

He referred to the evidence of DW7 and DW11 and the cases of IWUCHUKWU V. ANYANYU (1993) 8 NWLR (PT. 311) 310 and ADJEI V. DABANKA & ORS. (1930) I WACA 63 on what is pledge and its features. The Respondents contended that Section 15 of the High Court Laws of Eastern Nigeria and Limitation Law of Imo State are not applicable to the Respondent’s Case. That Limitation Law of Imo State has no retrospective effect because it came into effect in December 1994 whereas the action was instituted in 1996.

That by Section 43 the said Limitation Law would not apply to any matter subject to any Customary Court or area Court relating to marriage, family status inheritance or

devolution of property on death. That the statute of Limitation in Imo State is the same as the one operating in Lagos State. That Section 3 of Limitation Law talks about recovery of Lands after expiration of ten years after the right of action accrued in favour of a Plaintiff. That the Appellants held the land on behalf of Titus Akunna the pledge hence their possession will become adverse when the land was redeemed. That Sections 3, 9 and 10 of Limitation Law cannot avail the Appellants.

That in determining whether an action is statute barred the Writ of Summons and the Statement of Claim must be looked at so as to know when the cause of action arose and when the Writ was filed. He relied on SELEBA V.MOBIL PRODUCING NIG. LTD. (2006) 12 NWLR (PT. 995) 634 at 649. That the Claimant in HOU/61/1996 gave 1987 as the date of redemption of the pledge land and therefore his Suit cannot be statute barred. That the Appellants position that the Suit is statute barred is inconsistent with his submissions in paragraph 56 ? 28 of Appellant?s Brief of Argument that the pledge land is yet to be redeemed relying on Exhibits ?C? and

The Appellant filed Reply Brief which on the Issue of Limitation is a rehash of the main argument in their Brief. Suffice to say that the Appellants referred to paragraph 28 of their Statement of Claim in HOU/53/96 as pleading that the Respondents action is Statute barred.

The central issue or point here is whether the 1st Respondent’s action in Suit NO. HOU/61/96 is statute barred.

The whole purpose of a Statute of Limitation is that a prospective litigant must institute an action over a right that accrues to him in any matter within the time stipulated to claim his entitlement from the adversary who is making effort to take away his right or property. Where a Claimant instituted his action after or outside the time prescribed by Statute of Limitation or Limitation Law upon becoming aware of the wrongdoing being committed against the Claimant or his property, his right of action or enforcement or vindication of his right becomes terminated or extinguished.
The rational behind Limitation Laws and its enforcement have been eloquently stated in numerous cases viz:
(1) OBA J. A. AREMO II VS. S. F. ADEKANYE &

ORS. (2004 13 NWLR (PART 891) 572 at 592 A-H -593 A-F per Edozie J. S. C. who said:
“Sometimes, the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. Where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute-barred, a Plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation for instituting such an action has elapsed. See the case of Eboigbe vs. N.N.P.C. (1994) 5 NWLR (Part 347) 649; Odubeko vs. Fowler (1993) 7 NWLR (Part 308) 637; Sanda Vs. Kukawa Local Government (1991) 2 NWLR (Part 174) 379; Ekeogu vs. Aliri (1991) 3 NWLR (Part 179) 258. The rationale or justification supporting the existence of statute of limitation includes the following:
1. That long dormant claims have more of cruelty than

justice in them R. B. Policies at Lloyd?s vs. Butler (1950) 1 K. B. 76 at 81 ? 82,
2. That a defendant might have lost the evidence to disprove a stale claim; Jones vs. Bellgrove Properties Ltd. (1949) 2 KB 700 at 704 and (3) that persons with good causes of action should pursue then with reasonable diligence: Board of Trade Vs. Cayzer Irvine & Co. (1927) A. C. 610 at 628. The period of limitation begins to run from the date on which the cause of action accrued. To determine whether an action is statute barred, all that is required is for one to examine the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and comparing that date with the date on which the Writ of Summons was filed. If the time on the Writ is beyond the period allowed by the limitation law, then the action is statute-barred: See the case Egbe vs. Adefarasin (1987) 1 NWLR (Part 47 1 at 20 ? 21).
(2) ALHAJI JIBRIN BALA HASSAN VS. DR. MUAZU BANBANGIDA ALIYU & ORS. (2010) 17 NWLR (PART 1223) 547 at 617 H ? 620A where Adekeye JSC had this to say:
?I have to emphasise also

that a defence founded on statute of Limitation like the Public Offices Protection Act is a defence that that Plaintiff has no right of action. It is a defence which can be tried in limine and without any evidence in support, it is sufficient if prima facie the date of taking the cause of action outside the prescribed period is disclosed in the Writ of Summons and Statement of Claim?
In order to determine the period, consideration must be given to the Writ of Summons and Statement of Claim alleging when the wrong was committed and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence from witness.?

?The Appellants and the Respondents Learned Counsel devoted a lot of time to matters extraneous to the relevance or application of Limitation Law of Imo State 1994 to Suit HOU/61/96 and the relevant matters for consideration of this matter as to whether the said Suit is Statute barred forgetting that what is to be considered in order to decipher whether an action is caught by Statute of Limitation are the Writ of Summons and

Statement of Claim filed in the action. See: JFS INVESTMENT LTD. VS. BRAWAL LINE LIMITED & ORS. (2010) 12 SCM 79 at 113 H to 114 A ? B per RHODES ? VIVOUR JSC who said:
?When the issue for determination is whether a claim is time barred the trial Judge resolves the issue, first by examining the applicable limitation period provided in the enabling statue to see the period stipulated therein for the claim before him. Secondly, the Judge determines when the cause of action arose by examining carefully the Writ of Summons and Statement of Claim. Thirdly, when the Judge is satisfied as to when the Claimant/Plaintiff had a cause of action, he compares that date with the date the Writ of Summons was filed. If the time from when the cause of action arose to when the Writ of Summons was filed is beyond the period allowed in the enabling statue, then the action is statue barred. As the Law stands now a Court has no discretion in the matter (i.e. to extend limitation periods).?

The Writ of Summons in HOU/61/96 on page 38 of the record reads:
?(a) A declaration that the Plaintiffs are entitled to the Statutory Right of

Occupancy to that piece or parcel of land known as and called ?UHU OJIAKU? lying and situate at Ugbele Mgbidi in Oru Local Government Area Imo State of Nigeria with annual value of N10.00 (Ten Naira).
(b) N1000.000.00 being general and special damages for the trespass committed on this land.
(c) Perpetual Injunction restraining the Defendants by themselves, their servants, agents and privies from further acts of trespass on the said land?

The Statement of Claim in the said action consists of 61 paragraphs. (Pages 92 -101) of the record). I will however reproduce some salient paragraphs of the said statement of Claim viz paragraphs 18, 19, 20, 37, 38, 39, 43, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56 and 57 which are as follows:
?18. Udenze while taking his very expensive Ozo title of ?Nwanonego? in about 1939 pledged the Uhu Ojiaku Land to Chief Titus O. Akunna for ?UGBA-NA-BU which is an equivalent of N4.00 to accord with the Mgbidi native law and custom of IBIPURU OZO EGO.
19. The transaction between Udenze and Akunna was sealed with oath that the land is perpetually redeemable.<br< p=””

</br<

20. The original owner of Ala Igwiri portion of which is now in dispute was one OLOBUKWU who found, deforested, possessed and owned same.
37. Following the destruction of Akunna?s crops aforesaid Akunna handed over the pledged land to the 1st Defendant who was living with Nzekwe Uzoagba family of Umuduruesom Umuobana Ugbele Mgbidi to take care of on his behalf, this was in about 1941.
38. Udenze died soon after taking his expensive Ozo title.
39. Immediately Udenze died, the 1st Defendant commenced erecting a thatched house on the pledged land in 1943.
43. Lolo Akukananwa was highly skeptical over the 1st Defendant?s promise to vacate hence she sued the latter before the Ibiasoegbe Native Court in 1943 and she won.
44. Lolo Akukananwa had no money to redeem the Uhu Ojiaku Land after the said judgment hence the 1st Defendant/Caretaker continued in possession.
46. In 1988, the Plaintiff and his brothers approached the 1st Defendant to vacate Uhu Ojiaku Land for them in accordance with the latter?s promises to vacate on demand after redemption; the land having been redeemed.
47. Surprisingly, following the

said approach the 1st Defendant started laying false claims over the Uhu Ojiaku Land; saying that he bought it from Chief Titus Akunna. This false claim was raised because Chief Akunna was getting very old and sickly.
48. The Plaintiff and his brothers summoned the Defendants and Chief Akunna before Nkwo Ama Juju of Mgbidi in 1988.
49. Chief Titus Akunna appeared before Nkwo Ama Juju and declared that he never sold any land to the 1st Defendant. The Defendants refused to appear.
50. Chief Titus Akunna died in 1989.
51. By 1990, the Plaintiff and his brothers summoned the defendants before Umuobana Obilator Ugbele Mgbidi where both parties appeared and stated their case.
52. Before the said Obilator the Defendants maintained to the greatest surprise of the elders that Chief Akunna sold Uhu Ojiaku Land to the 1st Defendant and that the 1st Defendant shall produce a written agreement he entered into with Chief Akunna in respect of the said land at the appropriate time; but never produced any till date.
53. By 1991, Umuobana Obilator Amalas gave their decision which confirmed that Chief Akunna never sold Uhu Ojiaku Land to the 1st

Defendant only handed same over to the latter as a caretaker thereof.
54. Part of the Obilator?s decision was that the Defendants should surrender to the sons Udenze all the unhabited portions of Uhu Ojiaku Land forthwith while the sons of Udenze should in the spirit of peace and good neighbours allow the Defendants to live in the areas of Uhu Ojiaku they had already built on as the former?s customary tenants.
55. Both parties took the Amala decision in good faith, shook hands, broke and ate Kolanuts and drank Palm-Wine together in appreciation and acceptance of the decision.
56. The parties, following the said Amala decision started living peacefully while Umu Udenze Commenced two building operations on part of Uhu Ojiaku Land unhabited by the Defendants which reached up to lintel level.
57. It was when the other sons and grandsons of the 1st Defendant who reside in Lagos, together with F. O. A. Nwanosike Esq. (of Counsel) returned home that they confronted and in fact physically assaulted the 1st Defendant for accepting the Amala decision and allowing the sons of Udenze to build on Uhu Ojiaku Land. Hence the said sons and

grandsons of the 1st Defendant used his name and took out a Writ of Summons at Oguta in HOG/21/91 and later HOU/53/96 against the Plaintiff.?

I have calmly and thoroughly examined all the paragraphs contained in the Statement of Claim filed in HOU/61/96 particularly the paragraphs reproduced herein before along with the indorsements on the Writ of summons DATED AND FILED ON 18-11-1996 and I have no doubt in my mind that the cause of action accrued in 1988 from the facts pleaded in the said Statement of Claim. I agree with the Learned trial Judge that Statute of Limitation does not apply to bar a pledgor from redeeming his land on the maxim of ?Once a pledge always a pledge? and that the reversionary interest or repossion of the land out of the pledge transaction took place in 1987/1988.

If at all the Limitation Law 1994 of Imo State or the High Court Law applies the right to sue in this case occurred in 1987/1988 because it is an accrual of right of action relating to future interest in land before the pledged land was redeemed. See Section 5 (1) and (2) of the Limitation Law of Imo State 1994 which provide:
?5.(1) Subject

as hereafter in this section provided, the right of action to recover any land shall, in a case where the interest claimed was an interest in reversion or remainder or any other future interest and no person has taken possession of the land by virtue of the interest claimed, be deemed to have accrued on the date on which the interest fell into possession by the determination of the preceding interest.
(2) If the person entitled to the preceding interest was not in possession of the land on the date of the determination thereof, no action shall be brought by the person entitled to the succeeding interest after the expiration of ten years from the date on which the right of action accrued to the person entitled to the succeeding interest, or ten years from the date on which the right of action accrued to the person entitled to be succeeding interest, whichever period last expires.?

In the result the Suit/action of the 1st Respondent HOU/61/96 is not caught by Limitation Law of Imo State or by any other Limitation Law.
Issue 2 is hereby resolved against the Appellants.

ISSUE NO. 3
WHETHER THE RESPONDENT SUIT (HOU/61/96) AS BROUGHT IS

NOT INCOMPETENT, AN ABUSE OF THE COURT PROCESS AND UNMAINTAINABLE IN LAW AND WAS THE TRIAL JUDGE RIGHT IN THE WAY AND MANNER SHE DISJOINED THE RESPONDENTS (AS PLAINTIFFS) AND REPAIRED THE DAMAGE TO GIVE JUDGMENT TO THE 1ST RESPONDENT.

The contention of Learned Counsel to the Appellant is that Suit (HOU/61/96) is incompetent, unmaintainable and an abuse of Court process as brought by both Respondents as PLAINTIFFS under Order 11 Rule 1 of the High Court of Imo State (Court Procedure) 1988.

The reason for the submission is that the two Plaintiffs are not related. There are according to Appellants two distinct and separate subject matters of the Suit (HOU/61/96) viz. UHU OJIAKU and ALA IGWIRI Lands and with different acts of possession or ownership. That alleged owners are separate and distinct from one another. That 1st Plaintiff claims UHU OJIAKU while 2nd Plaintiff is claiming ALA IGWURI. That alleged trespass in respect of the two separate parcels of land occurred at different times in history. That this type of action is not permitted under ORDER 11 RULE 1 and thus constitutes abuse of Court process.

That what Order 11 Rule 1 permits

is joinder of severally persons as Plaintiffs in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist jointly or alternatively so that even if those plaintiffs had sued separately, common question of law or fact would arise. That though the Learned trial Judge agreed with the position of Appellants in her judgment on pages 329 ? 330 but went ahead to entertain the case and failed to strike out HOU/61/96. The Appellants brought in their arguments under issue 1 and further stated that the earlier motion they bought was refused by the Judge on 3/4/2001 pages 157 ? 161) of the record and that she agreed with Respondents counsel that the motion was brought prematurely and that Appellants should raise it under Order 24 of the High Court of IMO STATE (Civil Procedure) Rules (when applicable) i. e at or after trial.

The Appellants then stated:
?In compliance with the said ruling and with Order 24, the Appellants then raised the objection in their final address after trial. It is at this appropriate time that the trial Judge forgetting the said earlier

proceedings/position, now suo motu and introducing irrelevant and extraneous matters or sentiments, held that the objection is not timeous and proceeded to wrongly disjoin the Respondents as Plaintiffs to entertain the said suit HOU/61/96.?

That the trial Judge was wrong.

In their reply to the above submissions, Respondents stated that the submissions border on technicality. That it was the appellants who joined the two Respondents in HOU/53/96 as defendants claiming against them two different lands and that the respondents in this appeal now filed joint cross action against the Appellants. That by agreement of Learned Counsel to the parties the matters HOU/61/96 were consolidated on 11/3/2002 on account of both cases dealing with same subject matter and parties. That appellants did not explain how come they sued the two Respondents as defendants in HOU/53/96 on different parcels of land for trespass which did not occur simultaneously. That Order 11 Rule 5 (1) OF Imo State High Court Civil Procedure Rules empowers the Court to join parties who ought to have been joined to an action while Rule 5(1)s of ORDER 11 empowers the Court to strike out

name of any party or parties. That issue of misjoinder is an irregularity that is curable by Order 2 Rule 1 and that it cannot nullify the judgment of the Lower Court. He relied on Orders 4 Rule 3 of the said Rules.

That an action cannot be defeated on the ground of joinder or misjoinder either of the parties or causes of action. Respondents relied on the case of KALU VS DILI (1992) 5 NWLR (PART 240) 130. That the appellants who failed to take advantage of Order 24 Rule 1 -3 of Imo State High Court by moving the Court to order separate trial or strike out the name of a party by virtue of Order 4 Rule 3 are deemed to have waived the irregularity.

I must say at once that the appellants submission and facts relied upon are a gross misrepresentation of the law and facts of what the learned trial Judge said in her ruling of 3rd April 2001, pages 157-161 of the record of appeal. Let me bring to the fore again that the trial Judge never talked of Appellants Motion being premature but that the appellants application amounted to demurrer which according to the learned trial Judge had been prohibited by Order 24 Rule 1 of the Imo State High Court (Civil

Procedure) Rules 1988. The learned trial Judge only stated as follows:
“Order 24 Rule 1 is very emphatic- No demurrer shall be allowed it follows therefore that to bring an application of this nature, applicant is expected to do so in his pleadings which can be taken before trial. Therefore Court in the case of Mobil Oil Nig. PLC VS IAL 36 INC (2000) 77 LRCN 918 Ratios 1 and 2 recognizes that demurrer has been abolished in several jurisdictions in the Country but that some including the Federal High Court still retain it. Based on the Federal High Court Rules they held that demurrer is raised by motion and if the plea fails that the defendants is called upon to plead to the facts. However, the applicant cannot rely on this authority or any similar one because our jurisdiction has abolished demurrer proceedings. I have no difficulty whatsoever in holding that this application is not properly before this Court. I hereby strike it out.” (Underlining mine).

The Appellants did not appeal the ruling. It remains binding on them. See (1) BARNABAS OKONOBOR & ORS VS D EDEGBE & SONS TRANSPORT COMPANY LTD (2010)S 3 SCM 192 AT 197 G-H

where ONNOGHEN JSC said:
?I had earlier in this judgment reproduced the portion of the Ruling of the trial Court that gave rise to the appeal to the Lower Court. I have gone through the record. It is very clear that it was the trial Court that considered and ruled on the provisions of Section 4 of the Torts Law of Bendel State, not the Lower Court. It is also clear from the record that the decision of the trial Court on the matter was never appealed against by the either partly. It follows therefore that by operation of law the said decision as far as it relates to that issue remains binding on both parties in the action ? see OLARENWAJU VS THE GOVERNOR of OYO STATE (1992) 11 ? 12 SCJN 92.?
(2) APGA Vs CHRIS AYANWU & ORS (2014) 4 SCM 126 at 149
per KEKERE ? EKUN JSC who said:
?It is a settled principle of law that a decision on any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided and remains valid and binding on all the parties,?
(3) ALHAJI M. B. AWODI & ANOR VS MALLAM SALIIU AJAGBE (2014) 12 SCM (Pt.2) 181 at 195 per

OKORO JSC.

I think it is preposterous for the Appellants to raise the issue again in their final address knowing full well that the issue has been decided against them and when according to the trial Judge, such issue ought to have been raised as a point of law in their pleading assuming the High Court Rules of Imo State 1988 had provisions for it. That the trial Judge said the objection to the suit is not timeous in his judgment will not change the position or tilt anything in favour of the appellants concerning the competency of the Suit No. HOU/61/96.

The reason is obvious as could be seen from the provisions of ORDER 11 RULES 1, 2 and 5(2) which all provide:
1. ?11 Rule (1) Where in beginning or purporting
to begin any proceedings, or at any stage in the course of or in connection with any proceedings. There has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as in irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order

therein.
2. The Court may on the ground that there has been such a failure as mentioned in Paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein, or it may exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
5(2) the Court may, at any stage of the proceedings and on such terms as appear to the Court to be just, order that the name or names of any party or parties, whether as Plaintiffs or defendants, improperly joined, be struck out.?

Thus misjoinder of Plaintiffs or Co-Plaintiffs in Suit No. HOU/61/96 is procedural matter that is not fatal to the competence of the Suit and the jurisdiction of the trial Court as it is a mere irregularity over which the Lower Court is endowed with powers or discretion to remedy and strike out the name or names of Co-Plaintiffs or Defendants that are improperly joined in a Suit. It is a discretion and power

bestowed upon the trial Judge in order to expedite the action for just and fair hearing of the parties in the action whose interests are involved. It is not a jurisdictional matter. Though the Learned trial Judge said the Suit (HOU/61/96) was bad for misjoinder, His Lordship of the trial Court relied on Order 2 Rule 1 of the Imo State of Nigeria High Court (Civil Procedure) Rules 1988 which provides:
?(1) Where in beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
(3) The Court may on the ground that there has been such a failure as mentioned in Paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or

any document, judgment or order therein, or it may exercise its powers under those rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.”

to remedy the innocuous situation, after all the 1st Plaintiff in HOU/53/96 testified that he had no grouse against 2nd Defendant in Suit HOU/61/96 whose land is known as “ALA IGWIRI”.
Issue three (3) is therefore resolved against the Appellants.

ISSUE 4
WHETHER THE DEFENCES OF LACHES AND ACQUIESCENCE AND STANDING-BY DO NOT AVAIL THE APPELLANTS IN THE WHOLE CIRCUMSTANCES OF THIS CASE AND DID THEIR NON-CONSIDERATION BY THE TRIAL JUDGE NOT OCCASION MISCARRIAGE OF JUSTICE.
The Appellants stated that both in the Statement of Claim in HOU/61/96 (sic) paragraphs 10 and 12 thereof and their Defence to HOU/61/96, paragraph 21 thereof in the consolidated suit pleaded the defences of laches, acquiescence and standing-by. That the defences were vigorously pursued in their final address before the Court: that throughout the length and breadth of the judgment, the trial Judge did not say anything concerning them.

That the Respondents family (UDENZE FAMILY) did not sue on the Land until 53 years later in Suit HOU/61/96. That this too long a delay. That 1st Appellant had been building on the land in dispute in 1961, 1974, 1978 relying on the evidence of PW1, PW2 and PW3. That the Respondents did not deny?all these assertions. That DW3 moulded Cement blocks for the Appellants on the Land over a period of time. That these pieces of evidence show that the 1st Respondent and his Udenze family remained passive and acquiesced while Appellants were building on the Land in dispute.

That the impression created that the defendants were not aware when the Plaintiff commenced building on the properties or that Appellants promised to vacate the land cannot be true. That the Respondents wanted the Court to believe that they started exercising their rights over the land in 1987 after redeeming the land. The Appellants submitted that the Respondents evidence is full of contradiction and inconsistencies. That the Respondents are guilty of laches and acquiescence. He relied on EKPE VS. OKE (2001) 10 NWLR (PT. 721) 341. Appellants also relied on the evidence of DW7. Appellants

further relied on ADENIRAN V. ALAO (1992) 2 NWLR (Pt. 223) 350 on when the equitable defences will avail the Defendant.

In response to the above submissions the Respondents contended that the defences raised cannot avail the Appellants as Defendants in Suit HOU/61/96. They stated that there is evidence that there have been disputes between 1st Respondent?s mother and 1st Appellant from 1943 at the Ibiasoegbe Customary Court. That DW7 told the Court that Appellants were dragged before NKWO Ama Juju over the land in dispute. That there is evidence that 1st Respondents family had at various times called in the Police against the Appellants and Appellants too had got the Police to arrest Respondents. That the root of title pleaded by the Appellants was not established and as such the Appellants did not show any evidence of acts of ownership. That it is therefore unnecessary to consider act as ownership vide possession.

That acquiescence which will deprive a man of his rights must amount to fraud. That the conditions for a successful plea of acquiescence has been laid down in the case of in the case of ADEBAYO V. ONUSOLA (2005) 2 NWLR (Pt. 909) 149. That

the defendant must have encouraged the acts which makes Plaintiff to expend his resources and monies in building the land. He also relied on the case MOSS V. KENROW NIG. LTD. (1992) 9 NWLR (Pt. 264) 207 at 225 ? 226. That the Appellants were duly warned to stay off the land but they forged ahead so as to appropriate the land from Respondents. That a building erected on a mortgaged land during the life span of the mortgaged forms part of the mortgaged property. That laches and acquiescence are inapplicable. That PW1 told the pledge Court in his evidence that no pledgee has the right to sell pledged land and whoever buys pledged land bought nothing.

Now contrary to the submission of the Appellants that the trial Court made no observation or findings on their equitable defences, I am of the view the trial Judge actually did. On page 332 of the record the trial Judge said:
“It is the Law that evidence of acts of ownership and possession in a pledge land is irrelevant in the determination of title to land in dispute as a pledgee or mortgagee or his caretaker in possession is always free to make use of the pledged land.”

And on page

334 the trial Judge said:
“No title resides in Akunna which he could pass to 1st Plaintiff or any purchaser for that matter. Possession by Plaintiffs no matter how long cannot found a Claim in title against true owner.”

Now what are the implications and the position of the Apex Court on the principles of law popularly known as equitable defence against a Claimant by the Defendant. The principles have been settled and explained by the Apex Court the following cases thus:
1. ALHAJI SABALEMOTU KAIYAOJA & ORS. VS. LASISI EGUNLA (1974) 12 SC 55 at 65.
where DAN IBEKWE JSC held:
“It is hardly necessary for us to re-state here, the well-known fact that the equitable defences which are popularly known as “laches and acquiescence” derive from the equitable maxim “Delay defeats equities” or “equity aids the vigilant and not the indolent.” Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called “laches”. But that does not mean that laches consists simply of mere lapse of time. In our view, in order for the defence of

“laches” to operate, such lapse of time must be coupled with the existence of circumstances which make it inequitable to enforce the claim. In the absence of such circumstances, delay will be immaterial. We wish however, to stress that no hard and fast rule can be laid down with regard to this aspect of the law, for each case will have to be determined with due regard to its own peculiar facts and the surrounding circumstances. It has been held that delay will be fatal to a claim for equitable relief if the Plaintiff has so acted as to induce the defendant to alter his position on the reasonable faith that the claim has been released or abandoned. See Allcard v. Skiner (1887) 36 Ch. D. 145. Also, where the delay may have resulted in the destruction or loss of evidence by which the Claim might have been rebutted, the doctrine has been invoked. See Bourne v. Swan and Edgar Ltd. (1903) 1 Ch. 211 at 219, 220.?
2. LINUS OKEREKE & ANOR. VS. CHINYERE NWANKWO (2003) 4 SC (PART 1) 16 at 25 ? 26 per EDOZIE, JSC who said:
“The position of the law is that a party who sets up a defence of acquiescence, laches and standing-by

must establish that the part against whom those defences are set up had notice of what was being done, that he did nothing to prevent it and that the position of the opposite party was being altered to his prejudice, or detriment or that he had been induced by the other party’s inaction to spend money. See Folani v. Cole (186) 2 NWLR (Pt. 22) 367, Kayode v. Odutola (2001) 5 S. C. (Pt.11) 118 (2001) 11 NWLR (Pt. 725) 659. In Abbey v. Ollenu (1954) 14 WACA 564 at 568, the West African Court of Appeal quoted with approval and adopted an adopted the dictum of Fry, I., in Willmoth v. Barber (1880) 15 Ch. D 96 at 106, which reads thus,
“It has been said that the acquiescence which will deprive a man of his legal right must amount to fraud and in my view that is an abbreviated statement of a very true position. A man is not to be deprived of his legal rights unless he had acted in such a way as would make it fraudulent for him to set up those rights.”

I have carefully read the pieces of evidence given by the witnesses on both sides in their testimonies before the Court and the documentary evidence tendered, there is no cogent or positive

evidence in the record to show that the Respondents were ever guilty of delay in vindicating their rights or that the Respondents did anything to make the Appellants feel that the Respondents had accepted the title in the Land as residing or belonging to the Appellants. I have looked at all the exhibits relied upon by the parties and I am also of the solemn view that all the equitable defences set up by Appellants cannot be sustained. The trial Judge was right in his finding against the Appellants.

There is evidence on record which the Learned trial Judge believed and which this Court cannot fault that the Plaintiffs’ evidence did not establish any title to the Land in dispute. There is also evidence on record that the Respondents had always challenged the rights of the Appellants to build on the Land in dispute. The Appellants having not purchased sound title to the Land through Titus Akunna cannot claim that they are in possession of the Land in Law.

Respondents are not at all guilty of laches and are not caught by them. The Appellants knew all along that the land in dispute belonged to the Respondents. They will therefore lie on their beds

as they have laid it see KAIYAOJA & ORS. VS. EGUNYA Supra page 69 where DAN IBEKWE JSC said:
“We think that we should here reiterate the point which we have made earlier on in this judgment that, on the facts of this case, the appellants’ conduct is free from blemish. In our view, they have done nothing that smacks of fraud. As for the respondent, we think that hardship build up by wrongdoing ought not to evoke the sympathy of the Court in favour of the wrongdoer. The rule is caveat emptor – let the buyer beware. And that is exactly what the present respondent has failed to do. It is settled law that a purchaser of land, who fails to heed these words of wisdom, does so at his own peril. For sooner or later, he will discover, just as the respondent in this case has done, that he has bought a law-suit.

I agree with the Learned Counsel to Respondents that the equitable defences set up by the Appellants cannot avail them.
Issue 4 is hereby resolved against the Appellants.

ISSUE NO. 5
WHETHER THE TRIAL JUDGE WAS RIGHT IN HOLDING THAT EXHIBIT G IN THE CONSOLIDATED SUIT (THE PURPORTED UMUOBANA

NATIVE ARBITRATION) IS ADMISSIBLE, RELEVANT AND BINDING ON THE APPELLANTS.
The Appellants stated that for a Native arbitration to be binding on party or create estoppel against him, the party must have submitted himself to that arbitration and accepted or shown willingness to be bound thereby in which case he cannot resile therefrom. A lot of cases including AGU V. IKEWIBE (1991) 3 NWLR (Pt. 180) 385 and ODONIGI VS. OYELEKE (2001) 6 NWLR (PT. 708) 12 were cited and relied upon.

That the trial Judge misapplied and incorrectly evaluated the evidence adduced culminating in her holding that Exhibit G is binding on the Appellants. That on the facts and evidence presented before the Court Exh. G is not binding on Appellants.

That Exh. G was made 16 days after the suit of the 1st Appellant and 8 days after entry of Appearance by the 1st Respondent. That Exhibit G becomes irrelevant in the proceeding. That Exhibit G is a doctored version of Exhibit A attached to one of the Affidavits sworn to in the course of proceedings by 1st Respondent. That there are two versions of

the same Exh. G purported Umuobana oblitator Ugbele Mgbidi native Arbitration.

He drew attention to the evidence of Dw4 who testified that only one verdict was given that is Exhibit ?G?. That Exh. G was purportedly made on 27/3/91 but that Exhibit A attached to Counter Affidavit of 4/10/96 shows 27/4/91. That Exhibit has clearly been made for the purposes of the consolidated suit. That it is in admissible under Section 91(3) of the Evidence Act. He urged the Court to expunge it since according to Learned Counsel, inadmissible document cannot be admitted even by consent of the parties. That in the face of what Appellants described as demonstrated tailoring and doctoring the trial Judge ought not to have accorded Exhibit G probative value. Another reason put forward for expunction of Exhibit G by the Appellants’ is that all prerequisite for a binding arbitration are not present in that by DW4’s evidence, the 1st Plaintiff disagreed with the verdict of the Arbitrations.

That the 1st Appellant was also given liberty to consult his children meaning

that the acceptance of Exhibit G by 1st Appellant was conditional. That the 1st Appellant went to Court on 11/4/91 meaning he did not agree with UMUOBANA OBILATOR arbitration that Exhibit A of 4/10/96 was manufactured later or re-manufactured as Exhibit G according to Appellants Learned Counsel.

In their reaction to the submissions under Issue 5, the Respondents opined that all the contentions of the Appellants are wrong in Law. That there was a valid arbitration. That DW7 confirmed that the matter went to Nkwo-ama Juju in about 1966 and that DW5 agreed he withdrew the matter from Nkwo-ama Juju for settlement. That later in 1988, 1st Respondent took 1st Appellants before same Nkwo-ama Juju but that Appellants ran away while Chief Titus Akunna appeared and conceded to the Respondents. That again between 1990-1991. There was arbitration over the land in dispute by the UMUOBANA Kindred meeting between the parties to this appeal. That DW4 Lawrence Nwabueze said both parties appeared and stated their cases. That the decision of the arbitration is Exhibit G’s and that the Appellants as well as

Respondent accepted the decision in Exhibit G. That this is settlement according to Native Law and Custom. He relied on the Cases: (1) UFORMBA VS. ACHUCHAOGU (2003) FWLR (Pt. 157) 1013 at 1038 E ? F. (2) AGU VS. IKEWIBE (1991) 3 NWLR (Pt. 108) 385 at 407.

That both parties accepted the decision of Arbitration which was pronounced in their presence and the decision was not challenged by any of the parties. Respondents urged the Court to resolve Issue 5 in favour of the 1st Respondent.

The Law is settled that a party wishing to rely on decision of a Native Arbitration Panel must plead adequately the matters relating to the arbitration and must show that the parties voluntarily submitted their grievances to the Arbitration Panel and there was the desire by the parties to be bound by the decision of the said Arbitration. The Respondent duly pleaded and relied on the Customary Arbitration Panel decision and duly tendered Exhibit G to show that the arbitrators reached a decision and published their award. All the Respondent was expected to do and prove are the following viz:
(a) That there has been a voluntary

submission of the matter in dispute to an arbitration of one or more persons.
(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrations will be accepted as final and binding.
(c) That the said arbitration was in accordance with the custom of the parties or of their trade or business.
(d) That the arbitrators reached a decision and published their award and
(e) That the decision or award was accepted at the time it was made.
See: DR. C. O. OKOYE & ANOR VS. CHRISTOPHER N. OBIASO & ORS. (2010) 4 SCM 143 at 163 per ADEKEYE, JSC.:
(2) MR. MELFORD AGALA & ORS. VS. CHIEF BENJAMIN OKUSIN & ORS. (2010) 5SCM 23 at 49 D to 50 A-C per OGBUAGU JSC who said:
The conditions precedent to bindingness of a customary arbitration, are as follows:
(a) there must have been a voluntary submission of the disputes by the parties to the non-judicial body;
(b) the parties must have agreed to be bound by the decision of the non judicial body as final;
(c) that the decision was in accordance with the custom of the people or of their trade or

business; and
(d) that the arbitrators reached a decision and published their award.”
See the cases of Awosile v. Chief Sotunbo (supra) (a), 532 citing the cases of Inyanz v. Essien (1957) SCNLR 112; Njoku v. Ekeocha (1957) SCNLR 112; Njoku v. Ekeocha (1972) 2 ECSLR 199; Idika & Ors. v. Erisi & Ors. (1988) 2 NWLR (Pt. 78) 563; (1988) 5 SCNJ. 208; and Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385; (1991) 4 SCNJ. 56. In this last case, Nnaemeka-Agu, JSC stated at page 533 inter alia, as follows:
“Parties to disputes will do well to remember that such persons or bodies though highly placed and respected are not judicial bodies. Before their decision on any matter in dispute between parties can be relied upon as estoppel, all the above requirements of a binding customary arbitration must be shown to have been observed. The pleadings and evidence in this case fall far short of those requirements. Once such is the position, the case must be decided on the relative strengths of other facts established by evidence.”

There is evidence on record particularly by DW4 who was the Secretary of the Arbitration

Panel and who tendered Exhibit G showing that the parties voluntarily submitted to the said arbitration and complied with all conditions precedent. The parties to Exhibit G agreed to be bound by the decision of the Panel to resolve the land dispute between them. Both sides gave evidence before the Arbitration Panel. To my mind Exhibit G confirms what actually transpired before the said Panel. The decision of the Panel was published and all the parties are fully aware of the decision.

There is nothing in Exhibit G to show that the 1st Appellant or any of them expressed any dissatisfaction against the decision of the Arbitration Panel. The evidence relied upon by Appellants to the effect that the 1st Appellant told the Panel he wanted to consult his Children after accepting the decision of the Panel cannot whittle down the efficacy of Exhibit G. The Learned Counsel to the Appellant did not object to Exh. G when same was tendered. They cannot now complain against it. See CHIEF BRUNO ETIM & ORS. VS. CHIEF OKON UDO EKPE & ANOR. (1983) NSCC 86 at 95-96 per

ANIAGOLU, JSC.

The Learned trial Judge adequately evaluated Exhibit G before his finding that the parties are bound by it. Exhibit G speaks for itself. The appellants cannot be allowed to resile from the effect of Exhibit G. The decision of the Arbitration Panel has effectively created estoppel as between the parties and their privies, including the appellants in this appeal over the subject matter of the appeal. They cannot walk out of it. The reasonable inference to draw from Exhibit G is that the parties to it eminently evinced the intention to be bound by the decision of the Arbitration Panel. See: the cases of:
(1) MICHAEL IFEANYI OJIBAH VS UBAKA OJIBAH (1991) 6 SCNJ 156 at 169 where NNAEMEKA-AGU, JSC said:
“In my view, the law is pretty settled that where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to customary Law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding then once the arbitrators reach a decision. It is no longer open to either party to

subsequently back out of such a decision.”
(Underlining mine).
(2) CHUKWUDOZIE ANYABUNSI VS EMMANUEL UGWUNZE (1995) 6 NWLR (PART 401) 255 at where IGUH, JSC held firmly thus:
“It is also in evidence that both parties consented to this customary arbitration, submitted themselves to this body and together with their witnesses testified before the elders. The trial Court found it established, and this was affirmed by the Court below, that this customary arbitration ended in favour of the respondent’s family. This finding is that the Land was adjudged to belong to the respondent and the appellant was asked to resume payment of his tributes to the said Respondent.
It cannot be over emphasized that where two parties to a dispute as in the present case, voluntarily submit their matter in controversy to an arbitration according to customary Law and agreed whether expressly or by implication; that the decision of the arbitrators would be accepted as final and binding, then once the arbitrators reach a decision it will no longer be open to either party to subsequently back out of such a decision. A party rejecting such a decision

must prove that it was wrong in principle. See Michael OJIBAH V. K Ubaka Ojibah (1991) 22 NSCC (PT. 2) 130; (1991) 5 NWLR (Part 191) 296 and Omanhene Kobina V. Akese W.A.C.A. 1 at 2.?
(Underlining mine).

I am not unmindful of the allegation of the learned counsel to the Appellants that Exhibit G is a forgery when compared with Exhibit A attached to a counter Affidavit of the 1st respondent filed on 4/10/96 on pages 2-22 of the record.

It must be noted that the said Exhibit on pages 21-22 of the record has no evidential value because it is not an exhibit before the Lower Court. There was also no allegation of forgery, manipulation or doctoring of Exhibit G which was not pleaded either in the appellants statement of claim and appellants Defence in HOU/61/96. There was no issue joined on forgery of Exhibit G and no one was called by Appellants to prove before the Lower Court that Exhibit G was forged.

Where in any Civil Proceedings an adversary accuses his opponent of forgery of document and in this case Exhibit G, he is under a bounden duty to prove the

allegation beyond reasonable doubt in accordance with Section 138 of the Evidence Act Cap E14 LFN 2004 (which was applicable to the trial) which provides:
“138 (1) if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
See: (1) ALHAJI ISIYAKU YAKUBU VS. ALHAJI USMAN JAUROEL & ORS. (2014) 8 SCM 215 at 233 B-G per FABIYI, JSC who said:
“Let me develop this point further. Allegation of fraud must be proved beyond reasonable doubt. Such must not leave room for speculation. It is proof in the realm of probability and not fantastic possibility that is required. See: Nwobodo v. Onoh (1984) 1 SCNLR 1 at 27-28; Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Section 138 of Evidence Act, Cap. 12 LFN, 1990.
Standard of proof for commission of crime in civil cases as alleged herein is the same as in criminal cases. See: Famoroti v. Agbeka (1991) 5 NWLR (Pt. 189) 1 at 13 where this Court held that where the Plaintiff alleged that the thumb impression on Exhibit A, the basis of the case was

forged, same must be proved beyond reasonable doubt. See also Jules v. Ajani (1980) 5-7 SC 96 at 116.
I have said it before but I wish to further reiterate it that fraud requires a higher degree of probability in its proof. It must be pleaded with particulars adequately supplied. See: George v. Dominion Flour Mills Ltd. (1963) All NLR 70 at 77; Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91 at 106. A party alleging fraud must discharge the onus of proof to the satisfaction of the Court. See: Omoregie v. Aiwerioghene (1994) 1 NWLR (Pt. 321) 488 at 499.
The 1st Respondent who alleged fraud herein flew it in the air. Same was not attended by particulars. There was no shred of evidence adduced in support of same. As the allegation of fraud made by the 1st Respondent failed to take off, it did not hit the target.”
2. AIYEDOUN T. JULES VS. RAIMI AJANI (1980) N.S.C.C. 222 at 229-230 per NNAMANI, JSC of blessed memory who said:
“Learned Counsel for the Appellant had in his argument before us asserted that the issue of forgery did not arise in this suit. I think it did and the Federal Court of Appeal was right in so finding.

The Appellant clearly raised the issue of forgery in paragraph 3(a) and (b) of his pleadings as set out above. The learned trial Judge did not advert his mind fully to the implications of that pleading hence he sought to explain it as laying emphasis on Akinwale Ajao?s denial of execution of Exhibit ?A?. The point is that the Appellant having raised the issue of Exhibit ?A? being a forgery, the burden was on him to prove that assertion. The standard of proof is proof beyond reasonable doubt. Section 137(1) and (2) of the Evidence Act, Cap. 62.
Provide as follows:-
?137 (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of Section 140, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.?

The Appellants did not lead evidence or call any one to prove their allegation of forgery of Exhibit ?G? beyond reasonable

doubt. All they did is reliance placed on their Learned Counsel?s final address on page 307 of the record before the Lower Court.

Counsel?s address cannot by any stretch of imagination be equated with solid evidence required to establish allegations of crime against an adversary in Civil Proceedings. I am also of the view that Exhibit ?G? is not caught by Section 91 (3) of the Evidence Act 2004 as Exhibit ?G? was not proved by appellants to have been made by parties interested when proceedings was anticipated.
Issue 5 is resolved against the appellants.

ISSUE NO. 6
WHO AS BETWEEN THE 1ST RESPONDENT AND THE APPELLANTS PROVED TO BE ENTITLED TO JUDGMENT OF COURT.
It is the submission of the Appellants that the 1st Respondent did not prove to be entitled to judgment, that Appellants did but that the trial Judge erred in giving judgment to the 1st Respondent on his Claims while dismissing Appellants Claims.

The Appellants are also challenging the award of N1,000,000.00 general damages in favour of 1st Respondent against the Appellants. Learned Counsel to the Appellants relied on his argument on Issue

2 to submit that Appellants proved title to the Land at least under limitation Laws.

That burden of proof is not static under Sections 136 and 137 of the Evidence Act. That since 1st Respondent?s action was caught by Statute of Limitation, the onus shifts to 1st Respondent to prove otherwise. That the title of 1st Respondent to the land ceased in 1995. That the Appellants proved their title by customary purchase of the land in dispute from Titus Akunna. That PW1 gave evidence of three ingredients of a valid customary sale under the Law. That Appellants also gave evidence that Udenze sold the land in dispute to Titus Akunna who in turn sold to the Appellants. That the Respondents Udenze family did not prove that the land in dispute was handed over to Titus Akunna on pledge and that by extension, Respondents did not prove that Titus Akunna was their caretaker on the land.

?That Appellants are on the land in dispute with their nine (9) houses. He relied on Exhibits ?A? & ?B?. That the pledge and redemption of the land as claimed to have been done in 1987 by Respondent was not proved and that by Exh. ?C?

produced by Appellants have shown that it was untrue. That Appellants having proved the land to belong to them, the trial Judge?s judgment ought to be set aside.

The Respondents on the other hand stated that the piece of evidence before the Court show the 1st Respondent?s late father never sold his land to Titus Akunna who sold the land in dispute UHU OJIAKU LAND to the Appellants contrary to the stance of the Appellants. That the case of Appellants crumbled when PW1 testified and that Pw1?s evidence is the sole evidence of root of title of Appellants. Respondents relied on PW1 evidence on pages 129 and 142 ? 144. That DW1 told the Court that sale of land in Mgbidi is usually in writing but that there was no evidence of sale of the land to Appellants as prescribed by Native Law and Custom. That PW1 did not even know the meaning or value of figure or amount he said he paid for the land. That sale or purchase of land under native Law must meet three essential ingredients namely:
1. Payment of purchase price.
2. The purchaser must be put into possession by the vendor.
3. It must be in the presence of Witnesses.

?He

relied on the case of MANYA V. IDRIS (2001) 8 NWLR (Pt.716) 627 among other cases. That the Appellants did not prove any of the three ingredient of a valid sale or purchase of the land as alleged by Appellants.

Respondents relied on the evidence given by them and the evidence of pledge of the land and redemption of same. That the Appellants failed to call members of their alleged vendors family i.e. Akunna family or any other eye witness to the sale to testify on the alleged same. That Titus Akunna has no title to pass to Appellants because the land was on pledge to him by 1st Respondent’s father.

The law is now firmly settled that in a claim for declaration of title to land or right of occupancy to land and claim for trespass which in law is rooted in exclusive possession, the Claimant/Plaintiff, must establish his right to exclusive possession with a very clear or lucid evidence. He must demonstrate in his pleading and evidence the original founder of the land; how he came to be founder of the land and intervening owners through whom the Claimant/Plaintiff is claiming. Their particulars must be pleaded.

See: (1) GOODWIN C. ONOVO

VS ORS VS FERDINAND MBA & ORS (2014) 14 NWLR (PART 1427) 391 at 420 F-H to 421 A-D per OGUNBIYI JSC.
(2) CHUKWU EMEKA ANYAFULU & ORS Vs MADUEGBUNA MEKA & ORS (2014) 6 SCM 1 at 14 B-1 to 15 A-B where AKA’AHS, JSC said:
A Plaintiff who claims ownership of land through inheritance must plead and give evidence of the persons who have held title or on whom title devolved in respect of the land before the plaintiff took control of the land, where evidences of traditions is relied upon in proof of declaration of title to land, the plaintiff in order to succeed must plead and establish the following facts.
(i) Who founded the land
(ii) How he founded it; and
(iii) The particulars of the intervening owners through whom he claims down to him. See NKADO VS. EBINNO (1997) 5 NWLR (PART 503) 31; EZE VS ATASIE (2000) 10 NWLR (PART 676) 470
(3) MR. AUDU OTUKPO VS APA JOHN & ANOR (2012) 7 NWLR (PART 1299) 357 at 376 A – F per ONNOGHEN JSC.

The Learned trial Judge accepted the evidence of the Respondents that the land in dispute belonged to the Respondents family as original owners and that the said land was

on pledge to TITUS AKUNNA whom the appellants claimed sold the land to the 1st Appellant. The Learned trial Judge found that the pledge was redeemed. The trial Judge did not rely only on the evidence of the pledge to TITUS AKUNNA alone, he also found that other pieces of evidence before him established that the 1st Respondents family owned the land in dispute. See on pages 332-334 of the record.

This Court cannot interfere with the findings of the trial Court. The reason being that a trial Court is always in a better position to assess, evaluate and give credit or discredit to the evidence of witnesses that appear and testify before it. It was the trial Court that saw and heard the oral testimonies of the witness and so it is the Court below that can tell of their demeanour and about the worth of or weight to be accorded the pieces of evidence proffered. The findings of a trial Court can only be displaced or torpedoed in following circumstances viz:
1. Where the trial Judge failed to make proper use of his opportunity of seeing, hearing and observing the witnesses.
2. Where he failed to exercise his discretion properly or judicially.
3.

Where the trial judge drew a wrong conclusion from the accepted evidenced or formed an erroneous view thereon.
4. Where the findings or evaluation are perverse.

I am of the view that the various findings of the trial Court are covered and supported by the oral and documentary evidence proffered by the parties before the Lower Court. The trial Judge properly evaluated and assessed the said oral and documentary evidence. See
CHIEF D. B. AJIBULU VS MAJOR GENRAL D. O AJAYI (RTD) (2014) 2 NWLR (PART 1392) 483 AT 502 D -H to 503 A per OGUNBIYI, JSC who said:
“The law is well established, that under our adversarial system of jurisprudence, civil cases are decided on preponderance of evidence, see MOGAJI V. ODOFIN (1978) 3 – 4 SC 91. In summary, before the trial Court accepts or rejects the evidence of either side, it is expected of the Judge to construct an imaginary scale of justice whereupon he is expected to weigh the evidence of both sides for purpose of determining to which side the pendulum will tilt; the determination which is not dependent upon number of witnesses called. It is rather the credibility that gives probative

value to witnesses.
In the evaluation of evidence therefore, the central focus expected of a trial Court is whether it made proper findings upon the facts placed before it. In other words, as long as a trial Court judge does not arrive at his judgment simply by considering the case of one party and not the other but properly evaluate both sides, the decision will not be set aside merely because he adopts a method which is novel to the usual system. The measuring yardstick is the consideration of the totality of the entire case thus arriving at the just determination of the issues in controversy. The test is that of the perception by an ordinary reasonable man. See Woluchem v. Gudi (1981)5 SC p. 291.
The trial Court has the benefit of hearing and assessing the demeanour of witnesses. It is not within the powers of the appellate Court to encroach upon that privilege by way of interfering with the trial Judge’s findings unless they are shown to be perverse, unsupported by evidence or based on evidence not legally admissible.”

I am of the view that the judgment of the Lower Court is not perverse and there is no miscarriage of justice

against the Appellants.

?In the end, I am of the firm view that the appellants appeal lacks merit. Appellants’ appeal is hereby dismissed in its entirety.
The judgment of the High Court of Imo State Oru Division delivered in consolidated Suit NOS. HOU/53/96 and HOU/61/96 on the 7th day of March 2008 by Honourable Justice F. I. DURUOHA-IGWE is hereby affirmed.
The appellants shall pay costs assessed at N50,000.00 (Fifty Thousand Naira) to the respondents.

IGNATIUS IGWE AGUBE, J.C.A.: I had the advantage of reading in draft the judgment of my learned brother P. O. Ige, JCA and I am in total agreement with his reasoning and conclusions in dismissing this Appeal in its entirety. I am also of the same view that the Appeal lacks merit. I abide by the order as to Costs of N50,000.00 in favour of the Respondents and dismiss the Appeal for lacking in merit.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, PETER OLABISI IGE, JCA and I am in agreement with his reasoning and conclusions in dismissing the Appeal

in its entirety. I abide by the consequential orders made thereto.

Appearances

F. O. A. NWANOSIKE Esq.For Appellant

AND

L. M. ALOZIE Esq.For Respondent