EFA v. ITA & ANOR (2022)

EFA v. ITA & ANOR

(2022)LCN/16414(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, September 02, 2022

CA/C/331/2014

Before Our Lordships:

Raphael ChikweAgboJustice of the Court of Appeal

Muhammed Lawal ShuaibuJustice of the Court of Appeal

Balkisu Bello AliyuJustice of the Court of Appeal

Between

MR. MICHEAL EFFIOM EFAAPPELANT(S)

And

1. NTOE ETETA ITA 2. ESINJO EKONG AGBO ETA (FOR THEMSELVES AND ON BEHALF OF THE PEOPLE OF AKIM QUA TOWN)RESPONDENT(S)

RATIO:

THE DEFENCE OF STATUTE OF LIMITATION

The issue raised the defence of statute of limitation, under the Limitation Law of Cross River State which provides that no action shall be brought to recover possession of land after ten years from the date of the accrual of cause of action. The Appellant’s contention is that the Respondents’ suit filed on the 6th March 2002 claiming title/recovery of the land in dispute was outside the ten years provided by the said limitation law. The determining factor in the defence of limitation law are the pleaded facts that would show when the cause of action accrues to the plaintiff vis-a-vis the date the suit was filed seeking the intervention of the Court for redress. That is why it is necessary to plead facts to support that defence, otherwise, it cannot be raised in vacuo or from the address of counsel. See Supreme Court’s decision in ABDULRAHMAN VS. NNPC (2020) LPELR-55519 (SC), following its earlier decision in SULGRAVE HOLDINGS INC. & ORS. VS. FGN (supra)referred to by the Appellant. Indeed the Respondents also referred to Order 25 Rule 6(1) of the trial Court’s Rules of Civil Procedure, 1987 that were relevant to this proceeding, which requires a party who intends to rely on any statute of limitation to specifically plead it to avoid taking the opponent by surprise. BALKISU BELLO ALIYU, J.C.A.

THE SETTLED LAW ON THE METHODOLOGY OF THE EVALUATION OF EVIDENCE

The methodology of evaluation of evidence has been settled long ago by the Apex Court in MOGAJI VS. ODOFIN (1978) 3 S.C. 91 where the Court held that:
Therefore in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence, the trial Judge, after a summary of all facts, must put the two sets on an imaginary scale, weigh one against the other, and then apply the appropriate law to it, if that law supports it, bearing in mind the cause of action, he will find for the plaintiff. If not, the plaintiff’s case will be dismissed.
The above holding of the Apex Court is indicative of the fact that civil causes and matters are decided on preponderance of evidence, after an actual evaluation of evidence that entails a reasoned and reasonable belief. See ONWUAKPA & ORS. VS. ONYEAMA & ORS. (2018) LPELR-45091 (CA) PER HUSSAINI, JCA. The question that now arises is, did the learned trial Judge follow the simple methodology before he reached the decision appealed against? BALKISU BELLO ALIYU, J.C.A.

THE CUSTOMARY PRACTICE OF THE COMMUNITY IN RELATION TO A COMMUNAL OWNERWHIP

So, clearly the land the Respondents claimed vide their survey plan is a communal land and is known by both parties to be so. This was confirmed by exhibits 2 and B (judgment and layout plan). It is the law established by several decisions of this Court and the Apex Courtthat when a communal ownership of land is known and established, it must be presumed to be the customary practice of the community. Any individual claiming exclusive ownership must satisfactorily prove it to the Court in order to defeat the claim of communal ownership. The presumption of the law favours communal ownership of land in our African setting as against individual ownership, which the Appellant clearly seeks in defence of this suit. This presumption of law applies even where the individual is in occupation of the land in issue. See UDEZE & ORS. VS. CHIDEBE & ORS. (1990) LPELR-3295 (SC), NWAVU VS. OKOYE & ORS. (2008) LPELR-2116 (SC) and LEBILE VS. REGD. TRUSTEES OF CHERUBIM & SERAPHIM CHURCH OF ZION OF NIGERIA, UGBONLA (2003) LPELR-1774 (SC) among several others BALKISU BELLO ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Cross River State High Court sitting at Calabar delivered by Hon. Justice Okoi I. Itam on the 19th January 2011 in respect of Suit No: HJ/71/2005 commenced by the Respondents (Plaintiffs) for themselves and on behalf of the Akim Qua Clan against the Appellant. Unfortunately, all the original parties in this suit are deceased and were substituted with the present parties. The case of the Respondents against the Appellant at the trial Court was that the land in dispute, called Eta Agbo Road Layout, described in their survey plan No: DAACO/SE/50/BC/BD and tendered at the trial as exhibit 7 is a communal land owned by the people of Akim Qua Town. That by the Akim Qua custom, it is the Ntoe of Akim Qua Town and his cabinet who allocate the communal land and it was in that capacity that he allocated plots from the disputed land to the layout to developers. They claimed that the Appellant broke into the layout and built mud houses on some vacant plots without the consent or authority of the Ntoe of Akim Qua. That, he also prevented some allottees (Respondents’ tenants) from developing the plots allotted to them by the Ntoe. Upon these facts, the Respondents sought for the following reliefs against the Appellant:
1. A declaration that the Plaintiffs are entitled to the statutory right of occupancy over all that land at AbongAseng Street in the Eta Agbo Road layout, in Akim Qua Town, Calabar edged green in the Plaintiffs’ Survey Plan No. DAACO/SE/50/BC/LD filed in this suit.
2. A declaration that all sales, leases or assignment of the said land by the Defendant without the consent of the Ntoe of Akim Quo Clan and his cabinet are null and void.
3. Two million Naira as general damages against the Defendant for his trespass on the said Akim Qua communal land.
4. An order of injunction restraining the Defendant by himself, his servants, agents and privies from further alienation, development or trespass on the said Akim Qua communal land.

The Appellant denied the claims of the Respondents in his amended statement of defence. His defence was that his own land is called ‘EbonaEte MbofongNjok’ and it is not part of the Respondents’ communal land, but located next to the Respondents’ Eta Agbo Road Layout. That, his mother late Madam Emana Eta Mbora gifted him the land during her lifetime which she inherited from her father Ete Mbofong Njok. He denied trespassing into the Respondents’ land and/or preventing any of the allottees of the land from developing the plots.

During the trial, the Respondents called two witnesses and tendered documents including the survey plan of the land. The Appellant as the defendant also testified as the sole witness and he tendered a survey plan of the land he claimed was not part of the Respondents’ communal land. At the conclusion of the trial, the counsel of the parties filed written addresses in support of their respective cases.

The learned trial Judge after stating the pleadings, evidence and counsel’s respective written addresses reached the following conclusion in page 135 of the record of appeal:
As between the submissions of the Learned Counsel for the defendant and that of the Claimants as per their adopted written addresses, I am satisfied, find and hold that that of the Claimants completely and entirely overwhelms that of the defendant, in each and every material particulars; whether as it relates to the facts and/or the law in issue. In the event the defendant’s issues No. 1-3 as well as the Claimants issues No. 1-2 are all resolved in favour of the Claimants. Accordingly, Judgment is hereby entered in favour of the Claimants against the defendant as par the reliefs sought in the Claimants Amended Statement of Claim filed on March 22nd, 2004 as follows…

Consequent upon his finding, His Lordship granted all the four reliefs sought by the Respondents against the Appellant, awarded them N300,000:00 general damages and N10,000.00 costs “inclusive of out-of-pocket expenses.”

The Appellant was aggrieved with the decision of the trial Court and he filed a notice of appeal against it on the 12th April 2011, but it was amended and filed on the 17th August 2017 deemed properly filed on the 13th November 2017. He relied on five grounds of appeal to pray this Court to allow the appeal, set aside the judgment of the trial Court and dismiss the Respondents’ claims.

The Appellant’s brief of argument was settled by ABO ESOR EKPE ESQ. and filed on the 8th of June 2016, but deemed properly filed on the 13th November, 2017. He proposed four issues for the determination of this appeal from the five grounds of appeal, thus:
1. Whether the matter as presented to the learned trial Judge was statute barred and whether the learned trial Judge was right when he assumed and exercised jurisdiction on same.
2. Whether the learned trial Judge was right in law when he failed to properly evaluate the evidence before him to enable him reach a fair and just decision on questions presented before him.
3. Whether the learned trial Judge was right in law when he failed to consider the issue of Appellant’s long possession and use of land which are facts and evidence presented before him.
4. Whether the learned trial judge was right in law when he failed to consider the existence of individual interest within the communal land.

In opposing the appeal, the Respondents’ brief of argument settled by ESSIEN H. ANDREW ESQ. was filed on the 10th August 2016 but deemed properly filed on the 13th November 2017, and he proposed the following three issues for the determination of the appeal:
1.Whether in the circumstances of this case the defence of statute bar avails the appellant.
2. Whether the learned trial Judge failed to evaluate evidence, and if so whether that failure without more is sufficient to vitiate the judgment of the trial Court.
3. Whether on the preponderance of evidence, the judgment entered by the learned trial Judge in this case is correct.

The Appellant considered it necessary to file a reply brief on the 10th October 2016 deemed on the 13th November 2017. The appeal was called for hearing on the 7th June 2022 and counsel of parties adopted their respective briefs of argument. It is observed that the issues raised for the determination of the appeal by both parties are substantially the same. The parties are therefore at one on the issues arising for the determination of this appeal and I agree with them. However, the Respondents’ three issues are more lucid and I adopt them for my determination of the appeal.

ISSUE ONE
Whether in the circumstances of this case, the defence of statute bar avails the Appellant (Ground 1 of appeal).

This is the same as the Appellant’s issue one and in arguing this issue, the learned Appellant’s counsel relied on the provisions of the Limitation Law of Cross River State, which provide that no action for recovery of land shall be filed in Court after expiration of ten years from the date of the accrual of the cause of action to him or to some other person through whom he claims title to that land. He pointed out that the complaint of the Respondents at the trial Court was in respect of the entry of and occupation of their land and trespass which occurred in 1972, but they only filed the suit at the trial Court in 2002, a period of 30 years after the cause of action arose as shown in their pleadings. Learned counsel submitted that the failure of the Respondents to challenge the action of the Appellant shows that they acquiesced to his occupation of the land and they cannot turn around 30 years later to seek to eject him from the disputed land. He submitted that the suit is rendered incompetent and the exercise of jurisdiction of the trial Court to determine it is a nullity. He relied on the cases of HASSAN VS. ALIYU(2010) 17 NWLR (PT. 1223) 547 at 619-620 (H-C), OFFICER IN CHARGE (2010)2 NWLR (PT.1177) 148 and others to support his submissions and to urge us to resolve issue one in favor of the Appellant.

The Respondents’ learned counsel argued that the defence of statute of limitation was not raised by the Appellant at the trial Court but here on appeal as a fresh issue. He therefore requires the leave of Court to raise it as a fresh issue. That assuming the Appellant had sought and obtained leave to raise a fresh issue of law, the Respondents argued that the defence of statute of limitation will not avail him because he failed to plead it. The Respondents’ learned counsel relied on the provisions of Order 25 Rule 6(1) of the Cross River State High Court Civil Procedure Rules, 1987 applicable to these proceedings which required the defendant to specifically plead relevant statute of limitation which if not specifically pleaded will take the opponent by surprise. He also referred us to the cases of ADEOSUN VS. GOV. OF OSUN STATE (2012) ALL FWLR (PT. 619) 1044 at 1062, AJAYI VS. ADEBIYI (2012) ALL FWLR (PT. 634) 1, OYEBAMIJI VS. LAWSON (2008) ALL FWLR (PT. 438) 236 and others to the effect that the defence of statute of limitation must be pleaded otherwise, it will amount to an ambush of the opponent.

It was further argued that even assuming the Appellant pleaded limitation law, he still would not be entitled to its defence because of the facts pleaded in paragraphs 4, 5, 7, 8, 12, 15 and 16 of the Amended statement of claim of the Respondents and the evidence of PW2 contained in pages 24-26 of the record of appeal. That these facts showed that the cause of this action accrued in 2001 when the Appellant prevented the tenants of the Respondents from using the plots allocated to them in the layout and damaged the beacon stones on the land. As a result, the Respondents filed this suit on the 6th March 2002 well within the 10 years period stipulated by Section 1 of the Limitation Law of Cross River State. That, these facts known to him was the reason why the Appellant did not bother to raise the defence of statute of limitation at the trial Court.

By way of reply on points of law, the Appellant relied on the case of U. T. B. VS. DOLMETSCH LTD (2007) 8 M.J.S.C. 6 to submit that the defence of statute of limitation affects the jurisdiction of the trial Court to determine this suit and leave is not required to raise that issue. That assuming that leave is required, the Appellant is now seeking it from this Court to raise and argue same in this appeal.

RESOLUTION
The issue raised the defence of statute of limitation, under the Limitation Law of Cross River State which provides that no action shall be brought to recover possession of land after ten years from the date of the accrual of cause of action. The Appellant’s contention is that the Respondents’ suit filed on the 6th March 2002 claiming title/recovery of the land in dispute was outside the ten years provided by the said limitation law. The determining factor in the defence of limitation law are the pleaded facts that would show when the cause of action accrues to the plaintiff vis-a-vis the date the suit was filed seeking the intervention of the Court for redress. That is why it is necessary to plead facts to support that defence, otherwise, it cannot be raised in vacuo or from the address of counsel. See Supreme Court’s decision in ABDULRAHMAN VS. NNPC (2020) LPELR-55519 (SC), following its earlier decision in SULGRAVE HOLDINGS INC. & ORS. VS. FGN (supra)referred to by the Appellant. Indeed the Respondents also referred to Order 25 Rule 6(1) of the trial Court’s Rules of Civil Procedure, 1987 that were relevant to this proceeding, which requires a party who intends to rely on any statute of limitation to specifically plead it to avoid taking the opponent by surprise. The Appellant did not make any response to the submissions of the Respondents with regards to these specific provisions of the trial Court Rules, but contended that he pleaded facts relating to the defence of statute of limitation, though he did not mention the specific law. This contention of the Appellant makes me to have a very close look at his amended statement of defence which is contained in pages 27-31 of the record of appeal. I have gone through the length and breadth of the entire 42 paragraphs and I have not found any reference or indication of the Appellant’s relying on a statute of limitation. It is no wonder that the Appellant himself did not refer us to the specific paragraphs where he raised this defence of statute of limitation. It is to be noted that statute of limitation is a procedural law not a substantive law; and being such, it can be waived. Therefore even assuming the Appellant is entitled to the defence, having failed to raise it in his pleadings, he is deemed to have waived it, most especially in view of the clear provisions of Order 25 Rule 6(1) of the trial Court Rules. Having not raised the defence in his pleadings, it is wrong and amounted to an ambush for the Appellant to raise the issue in this appeal. I therefore resolve this issue against the Appellant.

ISSUE TWO
Whether the learned trial Judge failed to evaluate evidence and if so whether that failure without more is sufficient to vitiate the judgment of the trial Court. (Ground 2 of appeal).

This issue is the same as the Appellant’s issue two under which his contention is that the learned trial Judge failed to properly analyze and place the testimonies of the witnesses before him on the imaginary scale of justice to evaluate and attach probative value to the evidence led. That the learned trial Judge simply reproduced the evidence of the witnesses and submissions of counsel and then reached a conclusion, which is a fundamental omission because evaluation of evidence and ascribing probative value to it is his primary duty. He relied on the cases of HAMZA VS. KURE (2010) 10 NWLR (PT.1203) 620, A. M. & CO. NIG. LTD VOLKSWAGEN NIG. LTD (2010) 7 NWLR (PT. 1198) 179 at 210 PARA. B for support. He also argued that considering the proceedings at the trial Court and the judgment that emanated from it, it is obvious that the learned trial Judge did not display a thorough understanding and appraisal of the facts and the law relating thereto. This fact led to his failure to take note of the contradictions and discrepancies in the Respondents’ case, which led to miscarriage of justice. He urged the Court to so hold and resolve this issue in favour of the Appellant.

In response to issue two, the Respondents submitted that it is not enough for the Appellant to simply assert that the trial Judge failed to evaluate evidence, he must identify and specify the evidence that was not evaluated and go further to convince this Court how the judgment of the trial Court will be wrong if the error has been corrected. He cited in aid the cases of ONWUGBELU VS. MEZEBUO (2013) LPELR-20401 (CA) and SHITTU VS. OLAWUMI (2014) ALLFWLR (PT. 722) 1676 at 1699. He further submitted that in this case, the learned trial Judge weighed the evidence on an imaginary scale of justice and the case presented by the parties on facts and law, before coming to his conclusion that the case of the Respondents was weightier and better.

It was further submitted that this Court is not concerned with whether the reason given by the trial Judge for the decision is detailed or adequate, rather, our concern is whether the decision is correct or not. As such, the approach of the trial Judge to the evaluation of evidence is immaterial because that was his style, but what this Court is interested in is the fact that the Appellant has not been able to demonstrate from the evidence that the judgment was wrong on the merits. There is therefore no basis to interfere with the judgment of the trial Court which has not occasioned any miscarriage of justice. He referred to the cases of MASTER HOLDINGS (NIG.) LTD VS. OKEFIENA (2012) ALL FWLR (PT. 648) 921, S. C. C. (NIG.) LTD VS. ANYA (2013) ALL FWLR (PT. 703) 2047 and SHITTU VS. OLAWUMI (supra) for support and to urge us not to interfere with the judgment of the trial Court based on the allegation of failure to evaluate evidence.

In his reply on points of law to issue two, the learned Appellant’s counsel referred to the cases of SULGRAVE HOLDINGS INC. & ORS. VS. F.G.N. & ORS. (2012) 7 M.J.S.C. 40, to submit that in this case, the defence of statute of limitation arose from the facts pleaded by the Respondents and the Appellant at the trial Court. That the Appellant rightly raised the defence of statute of limitation in the facts pleaded and he needed not state the relevant limitation law that he relied upon. It can be seen that the learned counsel did not reply on points of law to the argument of the Respondents on the evaluation of evidence.

RESOLUTION
By the provisions of Sections 131 to 134 of the Evidence Act, civil cases are determined on the balance of probability. This entails the evaluation of the facts and evidence led by the parties in support of those facts before reaching a decision. The methodology of evaluation of evidence has been settled long ago by the Apex Court in MOGAJI VS. ODOFIN (1978) 3 S.C. 91 where the Court held that:
Therefore in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence, the trial Judge, after a summary of all facts, must put the two sets on an imaginary scale, weigh one against the other, and then apply the appropriate law to it, if that law supports it, bearing in mind the cause of action, he will find for the plaintiff. If not, the plaintiff’s case will be dismissed.
The above holding of the Apex Court is indicative of the fact that civil causes and matters are decided on preponderance of evidence, after an actual evaluation of evidence that entails a reasoned and reasonable belief. See ONWUAKPA & ORS. VS. ONYEAMA & ORS. (2018) LPELR-45091 (CA) PER HUSSAINI, JCA. The question that now arises is, did the learned trial Judge follow the simple methodology before he reached the decision appealed against?

To answer this question, I again closely scrutinize the judgment appealed against, contained in pages 117 to 136 of the record of proceedings. The learned trial Judge first stated the reliefs sought by the Respondents, and then stated in pages118 that:
In support of the claims, the Plaintiffs called two witnesses and tendered through them exhibits 1 to 6. The Defendant testified in person as the sole defence witness and tendered exhibits 7 and 8…. To summarize their lengthy evidence is rather herculean but it is a duty that ought to be done and properly done. That is why the parties came to this Court after all. I will now do so.

His lordship then proceeded to summarize the evidence of PW1 and PW2 in pages 118 to 121 including their evidence under cross-examination. He then summarized the Appellant’s (Defence) evidence both in chief and under cross-examination, in pages 121 to 123 of the record. Thereafter, he reproduced verbatim, the final written addresses of counsel of the Appellant and that of the Respondents from pages 124 to 134. His lordship commented that the Respondents’ rejoinder on points of law “completely avoids to respond to all the fundamental and material issues of law and the decided authorities cited and relied upon by the Claimants’ reply address. I see no need to dignify it by saying any more.” He then stated/pronounced the Court’s judgment in one paragraph as I already reproduced at the beginning of this judgment but I will again do so now, thus:
As between the submissions of the Learned Counsel for the defendant and that of the Claimants as per their adopted written addresses, I am satisfied, find and hold that, that of the Claimants completely and entirely overwhelms that of the defendant, in each and every material particulars; whether as it relates to the facts and/or the law in issue. In the event the defendant’s issues No. 1-3, as well as the Claimants, issues No. 1-2 are all resolved in favour of the Claimants. Accordingly, judgment is hereby entered in favour of the Claimants against the defendant as par the reliefs sought in the Claimants Amended Statement of Claim filed on March 22nd, 2004 as follows…

My lords, I regret to say I could not find any reasoning or reasoned evaluation of evidence from or for the above conclusion that the learned trial Judge reached. It is therefore clear to me that the learned trial Judge did not properly evaluate the evidence and/or apply any law to the facts and evidence that were led before him which he “summarized”. Rather, he used/relied on the “submissions” of counsel to hold that one overwhelms the other, i.e. the submissions of the Respondents overwhelms that of the Appellant.

With due respect to the learned trial Judge, civil cases are not, and should never be decided on the addresses of counsel no matter how brilliant or overwhelming such final written submissions are. The function of final written addresses of counsel at the end of a trial is simply to assist the Court in reaching or arriving at a just decision but only based on the evidence led which must be properly evaluated before that decision is reached. Again, it needs to be re-iterated that civil cases are decided on preponderance of evidence not on the “overwhelming” final addresses of parties’ counsel, which cannot take the place of pleadings and evidence.

And so with lamentation my lords, for it is not my duty as an appellate Court to evaluate the evidence led during the trial, I will invoke the powers conferred on me by Section 15 of the Court of Appeal Act in order to accede to the invitation of the Appellant, and proceed to look at the evidence on the cold records, in the interest of justice in order to determine whether or not the conclusion reached by the learned trial Judge is correct.

The case of the Respondents as per their amended statement of claim (see pages 24-26 of the record) is for a claim of title to the disputed land which they claimed as a communal land belonging to the Akim Aqua Clan. Being a communal land the Respondents claimed that any Akim Indigene may farm on any vacant part of it, but cannot claim ownership of it or even build on it without the consent and authority of the Akim Qua, the clan head. In fact, there was a decision of the High Court of Protectorate of Nigeria in suit No: C/35/36 delivered in April of 1938 that affirmed the Akim Qua custom of its land administration. The CTC of this decision was admitted in evidence as exhibit 2 at the trial. It was in order to properly facilitate the administration of their land that the Respondents began a development of residential layout on the land in 1972 known as Eta Agbo Road Layout and the layout included the land now in dispute. But the Appellant who is maternally from the Bende Family of Akim Qua, but paternally an Efik man started leasing out the Akim Qua land along AbongAseng Street in the Eta Agbo Road Layout to other people to build on without the consent Ntoe and his cabinet. Upon this discovery, the Respondents invited the Appellant for a meeting to explain his actions on the land, where he told the Ntoe and his cabinet that the disputed land was gifted to him by his late mother Madam Emma Eta Mbora which she inherited from his grandmother Madam Bassey Mbofong Nyok. But the Respondents said that the Appellant’s grandmother Madam Bassey Mbofong Nyok was from the Bende family of Akim Qua Clan and she had no landed property of her own. She however inherited the house built by her last husband at No. 5 Mborah Street Calabar, which was inherited by the mother of the Appellant. That, the mother of the Appellant being a member of Akim Qua Clan had no land of her own that she could give him as a gift. She had however farmed on a small part of the land in dispute at one time after she returned to the town upon her separation with her first husband. But that was in line with the Akim Quo custom which allows an indigene to clear a part of land for farming and that act does not make the land her own and that throughout her lifetime, the Appellant’s mother never claimed the land as hers. That the land in dispute is much larger than the Appellant’s mother’s original farm land, and also larger than the land shown on the Appellant’s survey plan dated 24th April 1987.

In paragraph 13 of their amended statement of claim, the Respondents stated that none of the Appellant’s brothers and sisters claimed ownership on any portion of Akim Qua land as an inheritance from their mother except the Appellant. That indeed, the Appellant’s brother one Bassey Bruno when he wanted to build on Akim Qua land, he approached the community and he was given a plot of land along Ndidem Usang Iso Road Calabar to build his personal house. They asserted that there is no member of the Akim Qua family that has the land the size that the Appellant claimed. That by their custom, children could inherit the building or compound developed by their parents on the allotted plots made to their parents but not bare land.

After the meeting of the Appellant and the Respondents in which he was warned to stop trespassing into the disputed land upon being informed/shown the spuriousness of his claim of title to it, but he insisted on his claim and proceeded to destroy some of the beacons stones marking out the plots in Eta Agbo Road Layout and also prevented some tenants who were allocated the land to build on by Ntoe from entering their plots. One of the tenants that the Appellant prevented from entering his land, Mr. John Etim Otop wrote a complaint letter to the Ntoe of Akim Quo town and again the Appellant was invited but he not only refused to attend the meeting, he caused his lawyers to write a letter on the 25th October 2001 to the Respondents informing them that he maintained his claim to the disputed land. This was the reason why the Respondents approached the trial Court by this suit against the Appellant.

The record shows that the Respondents called two witnesses who testified in support of their pleadings. PW1 was Chief Lawrence Ekong Eta whose evidence in chief is contained in pages 91 to 95 and cross-examination from pages 96-97 of the record of appeal. His evidence in chief was in line with the pleaded facts that I already stated supra. I note in particular that in page 92 PW1 stated that:
By custom, Akim land is communal since our forefathers deforested the area and settled there. This communal ownership of the land has been recognized and upheld by the Courts in so many cases including suit No: C/35/36 decided in April 1938. The power to manage the Court (sic) is vested in the Ntoe and he does this in consultation with the traditional heads of the 8 families in Akim. The Ntoe and clan head are the same thing. I have the certified true copy of the 1938 judgment on communal ownership…. As communal land, an individual has the right to farm on any empty space of the land for as long as he wishes provided the community has no need for the land. If he or she, whether indigene or non-indigene, he or she approaches the Ntoe or clan head. After due consultation with the family heads, the plot on that land is allocated to him or her. Any concrete structure put on that land allocated to him becomes his personal property which his children can inherit.

Under cross-examination, none of the salient points raised regarding the communal ownership of the disputed land by PW1was dislodged or discredited.

PW2 was John AdimO top, and his testimony is contained in pages 103 to 105 of the record. He stated inter alia in page 103 of the record that:
Yes, I know the suit land. It is situate at AbongAsong Street, in Eta Agbor Layout. It is a communal land of Akim Qua town community. It was designed by the community as a layout in 1972. If any indigene or non-indigene needs land there, he will go to Ntoe’s cabinet for a parcel in the layout. In 1977, I applied for a plot and I was given plot 42 in the layout with an agreement. I had no money to develop the plot immediately until 2001, I started moulding blocks. One day, I saw the defendant come and he started destroying the blocks. He also removed my burney (sic) beacons and those of other people around there. I asked him what is wrong and he said that the land belonged to his mother who gave it to him. I went and reported to the Ntoe’s cabinet and property committee. They sent some members to go and see what was going on there. I showed them my damaged blocks, removed beacons etc…

Under cross-examination, PW2 stated that he and the Appellant are fromthe Bende Family of Akim Qua Town community, but they are not blood relatives. He said it was incorrect that the Appellant had houses around the disputed land that the houses there are small mud houses. This evidence supports the PW1’s evidence in page 93 in which he stated that upon the complaint lodged by PW2, “we decided to go on inspection of the area. On inspection, we discovered that the defendant has allocated plots to his own tenants who built mud and ramshackle houses on the suit land. They built in such a manner that the layout was completely mutilated and one cannot see the beauty of it again….”

Now the claim of the Respondents for title to the disputed land from their pleadings and evidence led supra is based on communal ownership. The evidence they called, both oral and documentary (including the 1938 High Court’s judgment and survey plan) was in support of this claim of communal ownership of the disputed land.

On his part, the Appellant pleaded facts in his amended statement of defence by which he claimed title to the disputed land as individually owned by him through his mother and grandmother from whomhe claimed to have inherited the land in dispute. In paragraph 4 of his amended statement of defence (pages 27 to 31 of the record), the Appellant admitted that he is maternally from the Bande family of the Akim Qua Town community through his grandmother. He pleaded in paragraph 8 that the land in dispute was founded by EteMbofong “as an indigene of Akim Qua Town” who “joined others to found the settlement at AbongAsang Street, Calabar, where he deforested his special area and settled there with his people.” He further stated that none of the earlier Ntoes of Akim Qua land questioned or disturbed such settlers like his great grandfather EteMbofong because there was a quest for such settlers in those days, and they are regarded as the bonafide farm settlements or farmlands. In fact, he pleaded that:
Besides, there are many families along AbongAsang Street and Eta Agbor Road who have developed, some are developing, while some have sold out some of these “EBONA” owned by their ancestors without any encumbrance from the Akim Qua Cabinet.

He denied selling the Respondents’ land and stated that he built smallhouses on the land and rented out to tenants to sustain himself. In response to the claim of the Respondents that none of the Appellant’s brothers and sisters claimed ownership of the land in dispute as he was doing, he admitted that fact in paragraph 30 of his pleading and stated the reason was not because the land belonged to the Respondents’ Akim Qua clan but because his mother decided to hand over the land to him alone.

In support of his pleadings, the Appellant testified as DW1 and his evidence is contained in pages 106 to 108, continued on pages 110-112 and his evidence under cross-examination is on pages 112-113. In his evidence in chief at page 111, the Appellant testified that the disputed land is the real ‘Ebona’ land and that was why it needed not be allocated by the Akim Qua community. That outside the Ebona land, anyone who desires a land can apply to the Akim Qua community to be allocated a land. He said many other families in Akim Qua have Ebona lands, not just his family. He testified that the reason why the only brother of his mother Chief Eye ItaMboro applied to the community for land to build on was because;“he did not have any family land or Ebona, so he and his offsprings had to apply to the Akim Community for land to build. He has no claim there because he was of another father apart from being junior to my mother.”

The entire evidence of the Appellant as DW1 under cross-examination in pages 112 to 113 of the record is reproduced below to guide me:
Yes, my mother willed the dispute land to me. Yes, she died May 3rd, 1993. Yes, Chief MbofongNyok was from Bende family in Akim. He immigrated with the original ancestors to Akim, when Akim people came here they deforested and owned the land individually and not in common. EteMbofong land was not bounded by any communal land. He had boundary as others. There are people from that lineage to confirm my story, e.g. EdetEffiom who is opposite me. I built a zinc house in the land in dispute. Yes, I built the 1st house when Chief of Akim gave me permission to built (sic) as Ebona, and its just house that I built. I have no building plan or permit for the building. Etta Agbor layout belongs to Akim town. The disputed land is next to Etta Agbor layout. (Underlining mine.)

At the end of hearing ofevidence, counsel on both sides filed final written addresses in which they each raised issues which in their view arose for the determination of the trial Court. The Appellant as the defendant raised and argued three issues in his final written address in pages 86-95 of the record as:
1. Whether the claimants have been able to prove their title to the land, particularly delineated and edged green in claimants’ survey plan No. DAACO/SB/50/BC/LD to be entitled to the reliefs claimed in this suit.
2. Whether exhibit B proves the claimants’ claim as owners of all properties in Akim Qua Area Communal plots.
3. Whether exhibit 3 proves that DW2 is entitled to the piece of land belonging to the Defendant.

On their part, the Respondents raised and argued two issues in their final written address contained in pages 60-71 of the record of appeal thus:
1. Whether the plaintiffs are entitled to a statutory right of occupancy over all that land edged green in Survey plan NO. DAACO/SE/50/BC/LD marked exhibit 1 in this suit.
2. Whether the Plaintiffs are entitled to ancillary reliefs by way of nullification of any alienation of theland in dispute by the defendant, damages for trespass and an order of perpetual injunction.

Though the learned trial Judge relied on the addresses of counsel to reach his decision as already found supra, he did not state which of the issues raised by the parties he preferred to the other or even formulate his own issues for determination from the facts and evidence led before him. Rather in a very strange manner of adjudication, His Lordship simply decided for the trial Court at page 136 of the record thus:
In the event the defendant’s issues 1-3 as well as the Claimants’ issues 1-2 are all resolved in favour of the Claimants.

With due respect to the learned trial Judge, this is not good enough. He must, as a matter of duty, state which of the issues raised by the parties in his view captures the issues in dispute and adopt them to resolve or even formulate his own issues from the pleaded facts and evidence to guide his determination of the case. In my view, the Respondents’ two issues captured the issues in dispute and actually encompassed the three issues raised by the Appellant, and they can be determined together.

Asstated supra, the claims of the Respondents to title to the disputed land is based on communal ownership of the entire Akim Qua Land. They relied on the survey plan and the 1938 judgment of the High Court confirming their right of communal ownership of the land in dispute to support their claims. The evidence of PW2 one of the allottees of the land provides strong corroboration to their claims of ownership and administration of the land in dispute. Also noted is the fact that none of the evidence of the two witnesses including documents they relied upon was discredited under cross-examination.

It is pertinent to also state that the Appellant did not deny that the Akim Qua communal land existed and it is administered for the community by the Ntoe in council. His defence was that his own land is not part of the Akim community land but founded by his ancestor MbofongNyok who migrated and settled along with the Akim people and owned his own land individually and not part of the Akim community even though he (MbofongNyok) was also of Akim clan vide his Bende family. I have supra reproduced and highlighted the testimony of the Appellant as DW1. I note thatthough he stated that his land is individually owned, and that there were people from ‘other lineages’ that can confirm his story, he did not call anyone to support his claims. In particular, he mentioned his neighbourEdetEffiom, but this person was not called to corroborate the claims of the Appellant. I also note the contradiction of the Appellant’s testimony wherein he first stated that he needed no permission or allocation to build on his land, being an Ebona land, and yet he stated under cross-examination that; “Yes I built the 1st house when Chief of Akim gave me permission to built (sic) as Ebona, and its just house that I built.” I also note that the Appellant admitted that the land next to the disputed land belonged communally to the Akim Quo Clan, which he also belonged through his mother from whom he claimed to have inherited the land in dispute.

While the Respondents called credible evidence that supports their claim of communal ownership of the disputed land, the evidence called by the Respondents is unreliable and contradictory. In fact, his evidence elicited under cross-examination which I reproduced supra indeed supports the claims of the Respondents especially when he stated clearly that he was givenpermission to build his house on the disputed land that he called ‘Ebona’ land. To further strengthen the Respondents’ claims, is the fact admitted by the Appellant that his mother and grandmother from whom he asserted title to the land in dispute were both members of the Akim Qua clan. Furthermore, he failed to call other persons whom he claimed also individually owns land within or even outside the communal land like his neighbour.

And therefore on the balance of probability, the Respondents’ claims are more believable and properly substantiated. Though the learned trial Judge failed to properly evaluate the evidence before reaching his decision, but his conclusion was correct based on the evidence on record. This issue is resolved partly in favour of the Appellant only with regards to the failure of the learned trial Judge to evaluate the evidence before reaching the final decision.

ISSUE THREE
Whether on the preponderance of evidence, the judgment entered by the learned trial Judge in this case was correct. (Grounds 3, 4 and 5 of appeal). This issue covers the Appellant’s issues 3 and 4.

On issue three, theAppellant posited that from the facts presented at the trial Court, there was no doubt that the Appellant has enjoyed exclusive possession of the disputed land. The learned counsel reproduced the evidence given by the Appellant at the trial Court showing the chain of ownership up to him, and pointed out that since 1972 when the substitute Appellant (father of the present Appellant) had demonstrated his intention to retain possession of the land in dispute and even prevented any adverse occupation of same, the predecessors of the present Respondents and the people of Akim Qua Town did not take any action to challenge him until 2002, thirty years later. That it is fundamental that one of the five methods of proving title to land is long possession and enjoyment of the land, vide the cases of FAYEMI VS. AWE (2010) ALL FWLR (PT.528) 862 and ODUNUKWE VS. OFOMATA (2010) 18 NWLR (PT. 1225) 404, among others but the learned trial Judge did not consider this fact of long possession of the Appellant’s predecessor and the Appellant in reaching the decision. The Appellant therefore urged us to reverse that decision and resolve this issue in his favour.

With regards to his issue four, the Appellant contended that the learned trial Judge failed to pay attention and consider that the fact that the law allows an individual to become owner of land within a community. That facts of this case showed that the predecessor of the Appellant was the first settler on the disputed land which he deforested, farmed on it and built a family house on it. He then transferred the land to his daughter, the mother of the substituted Appellant and grandmother of the present Appellant. That, facts also showed that the substituted Appellant upon his occupation of the land leased part of it and also built on it without any challenge from the substitute Respondents, the present Respondents or the people of Akim Qua town until 2002. He argued that numerous acts of leasing, renting out, farming on a land that extended over a sufficient length of time constitute evidence from which ownership of title to land can be inferred. He relied on the cases of ODUNUKWE VS. OFOMATA (supra) and FAYEMI VS. AWE (supra) to submit that it is obvious that the ownership of the land in dispute has been acquired over time by the substituted Appellant,father of the present Appellant through several acts of usage and disposition. That it is strange and surprising that the learned trial Judge did not consider these copious acts. The Appellant urged this Court to remedy the miscarriage of justice occasioned by the decision of the trial Court.

In response to the submissions of the Appellant on issues 3 and 4, the Respondents referred the Court to the evidence of the Appellant as DW1 in which he admitted that the disputed land is adjacent to the communal land of the Respondents. In that case, there is a presumption arising from the Respondents’ ownership of the adjacent land in addition to the fact that they are claiming the land as a communal land as against the Appellant’s claiming it as individual land. The burden of proof is therefore automatically shifted to the Appellant who asserted personal ownership as against the Respondents’ asserting communal ownership. The learned Respondents’ counsel cited the cases of UDEZE VS. CHIDEBE (1990) 1 NWLR (PT. 125) 141 on the principle of law that he who asserts exclusive ownership as against communal claim of ownership has the onus toprove such exclusive ownership.

It was the contention of the Respondents that the evidence of DW1 contained in pages 106-107 of the record of appeal in which he relied on traditional history and gift at his root of title is at best weak and contradictory. That the evidence of the Appellant was also at variance with paragraphs 36, 37 and 38 of his amended statement of defence and he failed to tender the deed by which the land was allegedly conveyed by his mother to him. They relied on the cases of ADELEKE VS. ASANI (2002) FWLR (PT. 106) 982 at 999 D-F and EZE VS. ATASIE (2000) FWLR (PT. 13) 2180 to submit that the learned trial Judge was right to discountenance the traditional history relied upon by the Appellant.

On the length of possession claimed by the Appellant, the Respondents submitted that having failed to establish his root of title that he pleaded, the Appellant cannot be heard to argue in this appeal that the trial Court should have given him judgment based on long possession. They cited the cases of SANYA VS. SAUMAM (2012) ALL FWLR (PT. 618) 917, OYEKAN VS. OYEWALE (2012) ALL FWLR (PT. 623) 1991, and DIBIA VS. TUBONIMI (2010) ALL FWLR(PT. 546) 583 to the effect that where a claimant for title to land fails to prove his root of title by that means, he cannot turn around to rely on acts of ownership and possession to prove his title to land. This is because once foundation of his title, the traditional history has failed, there would be nothing on which to found acts of ownership and possession. The Court is therefore urged to dismiss this appeal and affirm the judgment of the trial Court.

Replying on points of law, the Appellant relied on the case of AYANWU VS. MANDILLAS LTD (2007) M.J.S.C. 166, to the effect that where the trial Court fails to evaluate the evidence led at the trial, then this Court in the interest of justice must exercise its powers of review on the facts of the case and draw appropriate inferences from proved facts. He submitted that the facts and circumstances of this case necessitate an open invitation to this Court to make its own findings from the evidence available on the record and should interfere with the findings of the trial Court.

RESOLUTION
In view of my determination of issue two supra, I adopt all that I have stated to answer this issue inthe affirmative. The decision reached by the learned trial Judge in view of the facts pleaded and the evidence led in support preponderates on the side of the Respondents. The Appellant failed to establish by credible evidence that he exclusively owned the land in dispute as against the Akim Qua Community’s established ownership. I resolve this issue against the Appellant.

Having resolved issues 1 and 3 against the Appellant and only partly resolve issue two in his favour, his appeal fails and it is hereby dismissed by me. I affirm the judgment of the trial High Court of Cross River State, Calabar Division delivered on the 19th January 2011 by the Hon. Justice Okoi I. Itam in respect of Suit NO: HC/96/2002. I award cost of N100,000.00 (One Hundred Thousand Naira) against the Appellant in favour of the Respondents.

RAPHAEL CHIKWE AGBO, J.C.A.: I read in advance the lead judgment of my learned brother Aliyu, JCA and I agree that the appeal be dismissed. There is complete want of merit in the appeal. I abide by the consequential order contained in the lead judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in advance, the lead judgment of mylearned brother, Balkisu B. Aliyu JCA. My lord has comprehensively dealt with all the issues raised and canvassed in this appeal. I am in full agreement with the reasoning and conclusion reached in dismissing the appeal. I also dismiss the meritless appeal and abide by all the consequential orders including the order as to costs.

Appearances:

E. EKPE, ESQ. with him, N. M. EJA, ESQ. For Appellant(s)

ESSIEN H. ANDREW, ESQ. (SAN), with him, C. N. NWOJIOBI, ESQ. and ALMA BASSEY, ESQ. For Respondent(s)