EGBUNIWE v. AKAEZE
(2022)LCN/16442(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Wednesday, June 01, 2022
CA/AS/245/2014
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
CASTRO ISITUA EGBUNIWE APPELANT(S)
And
FABIAN CHIDOZIE AKAEZE (For Himself And On Behalf Of The Children Of Late Patrick Chike Akaeze) RESPONDENT(S)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Delta State delivered in suit no. A/212/2014 on 23/1/2014 wherein the respondent as the claimant sought a declaration over the piece/parcel of land situate at Umuojife Layout, Asaba measuring approximately 2527.921 Square metres, bounded by Survey Beacons Nos. PE802, YB1584, YB1587 & YB3178 shown verged pink in Survey Plan No. LSF4853, N10 Million Naira damages for trespass committed by the appellant on the land and an order of perpetual injunction against the appellant.
The respondent’s case at the lower Court was that sometimes in 1977, his father, late Partrick Chike Akaeze who died on 24/4/2004 acquired the land in dispute by purchase under native law and custom from Umuojife family. He took possession of the land, demarcated the boundaries with live sticks and caused the land to be surveyed by a licensed surveyor in 1985. He also prepared a building plan and caused the land to be fenced with concrete blocks. In 2011, it was observed that part of the fence had been knocked down and some mechanics workshops were on the land. In 2012, the respondent’s mother tried to eject the mechanics and restore the damaged fence. The appellant challenged the respondent’s mother. He confirmed that he knocked down the fence and put the mechanics on the land as his tenants. The appellant stationed thugs on the land and prevented the respondent’s mother from gaining access to the land.
The appellant’s case was that Umuojife family is not part of the five recognised quarters in Asaba and is not a descendant of Nnebisi, the acknowledged founder of Asaba. The land in dispute is part of a large expanse of land known as Ani Ndida, lying and situate at Umuagu Quarters, Asaba owned and managed by the defendant as the only surviving heir of Odita of Idegwu Ugbomo. He pleaded the judgment in suit no. A/62/87: ODITA IDEGWU UGBOMO AND ANOR V. KINGSLEY IJEH AND ANOR delivered on 11/8/1997. The appellant in exercise of maximum and exclusive possession put Ajayi Kehinde Abayomi, a mechanic on the land in 1978 and he is still a tenant of the appellant. The appellant also sold parcels of land surrounding the land in dispute to Cyril Anene, S.E.O. Mordi, Malachy Ijeh, Tony Agwanihu, Chijioke Opara, Gabriel Ahamefule and Nkechi Onyia without any challenge, disturbance or interruption whatsoever from anybody.
The respondent called two witnesses and closed his case on 3/7/2013. The case was adjourned to 25/9/2013 for defence. There is no record of what happened on 25/9/2013. The record shows that when the case came up on 20/11/2013 the appellant and his counsel were absent. The Court then closed the hearing of the case. The respondent’s counsel delivered a short address and judgment was fixed for 16/12/2013. There is no record of what happened on 16/12/2013. The record shows that judgment was delivered on 23/1/2014. All the reliefs sought by the respondent were granted.
Being dissatisfied with the judgment, the appellant filed a notice of appeal on 8/4/2014. A Further Amended Notice of Appeal filed on 11/03/2021 was deemed as properly filed and served on 13/7/2021. The grounds of appeal in the Further Amended Notice of Appeal without their particulars are as follows:
GROUNDS OF APPEAL 1
The learned trial judge erred in law by granting paragraph 10 of the Statement of Claim to the plaintiff/respondent.
GROUND 2
The learned trial Court erred in law when he entered a declaratory judgment in favour of the respondent when there was no dispute survey plan of the land in dispute.
GROUND 3
The Court erred in law when it gave judgment to a defendant who did not testify to show he is the rightful owner of the land in dispute.
GROUND 4
The Court erred in law and occasioned a miscarriage of justice when it did not resolve the location of the land in dispute.
GROUND 5
The Court erred in law and thereby occasioned a miscarriage of justice when it gave judgment without proof of at least one of the five ways of proving ownership of land.
GROUND 6
The learned trial judge erred in law and thereby occasioned a miscarriage of justice when he awarded One Million Naira (N1,000,000.00) as damages for trespass to the plaintiff/respondent who was never at any point in time in possession of the land in dispute.
GROUND 7
Learned trial judge erred in law and awarded judgment to the respondent who from evidence was away from the land for over 25 years.
GROUND 8
The learned trial judge erred in law when he entered a default judgment in favour of the respondent in a claim for declaration of title to land.
GROUND 9
The learned trial Judge erred in law in assuming jurisdiction over the respondent’s case when the writ of summons was neither signed by the respondent as plaintiff nor his counsel.
The appellant’s further amended brief of argument was filed on 11/3/2021. It was deemed as properly filed and served on 13/7/2021. The respondent’s amended brief of argument was filed on 9/3/22. The appellant formulated the following issues for determination:
1. Whether the respondent’s case is not liable to be struck out for want of jurisdiction on account of non-signing of the originating process.
2. Whether the trial Court can award a claim for declaration of title based on a property survey plan which has neither the name of the claimant nor the title of the suit on it.
3. Whether a declaration of title can be awarded without proving any of the five (5) ways of establishing title to land.
4. Whether a declaration of title can be award to a plaintiff who did not testify at the trial nor donate a Power of Attorney to anybody to represent him and who did not appear at all at the trial.
5. Whether title to land can be awarded to a party where there is adverse claim as to location of the land without a composite plan.
6. Whether damages in trespass can be awarded to a party who has never stepped on a piece of land in dispute.
7. Whether the refusal to give the defendant/appellant an opportunity to be heard a denial of fair hearing.
The respondent adopted the issues formulated by the appellant though the issues were re-arranged. The respondent’s counsel submitted that no issue was formulated in respect of grounds 1 and 7 of the appeal. He urged the Court to strike out those grounds of appeal. There was no reply to that submission.
The law is settled that any ground of appeal in respect of which no issue is formulated is deemed abandoned and liable to be struck out. I have examined the issues formulated by the appellant and the grounds of appeal. I agree that no issue was formulated in respect of grounds 1 and 7 of the appeal. In law, they are deemed abandoned and are hereby struck out.
The issues formulated are in respect of grounds 2-6 and 8 and 9 of the appeal. The issues thrown up for determination by the grounds of appeal are as follows:
1. Whether failure of the appellant or his counsel to sign the writ of summons in the instant case robs the Court of its jurisdiction to entertain the respondent’s claim
2. Whether it is mandatory for the claimant to file a dispute plan in every land case.
3. Whether the appellant was denied an opportunity to be heard.
4. Whether the lower Court was right to enter judgment in favour of the respondent.
On issue 1 which is whether failure of the appellant or his counsel to sign the writ of summons in the instant case robs the Court of its jurisdiction to entertain the respondent’s claim, the appellant’s counsel contends that the writ of summons not having been signed by the respondent or his counsel is invalid and the Court is robbed of its jurisdiction to entertain the respondent’s claim. He referred to DANNET-OWOO & ANOR V. EFFIONG (2020) LPELR-50079 (CA) AT 33 (A- F), 34 (C-F). SAMI V. APC (2019) LPELR-48045(CA). He argued that the signature of the Registrar cannot be a substitute for that of the litigant or his counsel because the signature of the litigant or his counsel authenticates the claim endorsed on the writ while that of the Registrar signifies the issuance of the writ. He referred to Order 3 Rule 6 of the High Court (Civil Procedure) Rules of Delta State, 2009.
In response, the respondent’s counsel argued that issuance of a writ of summons is regulated by Rules of various Courts and it is wrong to import into the High Court (Civil Procedure) Rules of Delta State, 2009 a requirement that is not there. He submitted that application for a writ is not the same as issuance of a writ. He contends that it is the issuance that makes the writ valid not the application for the issuance of the writ. He submitted that the states that require the writ to be signed by the legal practitioner or the claimant expressly states so in their rules. He urged the Court to follow the decisions in SPDCN V. GBENEYEI (2019) 13 NWLR (PT.1689) 272, LEADERSHIP NEWSPAPER GROUP LTD & ORS V. MOHAMMED (2017) LPELR- 42871(CA), YAKUSAK V. XELA (NIG)LTD 7 ORS (2019) LPELR – 48728(CA), JALBAIT VENTURES (NIG) LTD & ANOR V. UNITY BANK PLC (2016) LPELR- 41625(CA) and other cases decided under the rules of various High Courts which do not require the writ to be signed by the legal practitioner or the claimant. He submitted that the decisions in DANNET-OWOO & ANOR V. EFFIONG (SUPRA), SAMI V. APC (SUPRA), TUNJI BRAITHWAITE V. SKYE BANK PLC (2013) 5 NWLR (PT.1346) 1, BUHARI V. ADEBAYO (2014) LPELR-22521(CA), HENSHAW V. HENSHAW (2017) LPELR-42637 (CA), ODEJAYI V. HENLEY IND. LTD.(2013) LPELR- 20368(CA) were decided under the Rules of Court which provide that the writ shall be signed by the legal practitioner or the claimant and the High Court (Civil Procedure) Rules of Delta State, 2009 does not have such requirement. He finally submitted that the claimant cannot be punished for not doing what the law does not require him to do.
RESOLUTION
Order 3 Rule 6 of the High Court (Civil Procedure) Rules of Delta State, 2009 provides that:
“6. A writ of summons shall be issued by the Registrar or other officer of the Court empowered to issue summonses, on application. The application shall ordinarily be made in writing by the claimant’s solicitor by completing Form 1 in the Appendix to these rules, but the Registrar or other officer as aforesaid, where the applicant for a writ of summons is illiterate, or has no solicitor, may dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared, signed and issued.”
It is clear from the above rule that where a suit is to be commenced in the High Court of Delta State by a writ of summons, an application shall be made to the Registrar of the Court by the claimant’s solicitor by completing FORM 1 in the appendix to the Rules of the Court. Where the claimant has no solicitor or is an illiterate, the claimant may make an oral application to the Registrar and the registrar shall record the oral application, prepare, sign and issue a writ of summons.
There is no specific provision in the Order 3 of the High Court (Civil Procedure) Rules of Delta State, 2009 requiring the signature of the solicitor or the claimant. However, it is a settled principle of law that every Court process including an originating process prepared by a legal practitioner must be signed by the legal practitioner. Thus where a Court process such as Form 1 in the appendix to the High Court (Civil Procedure) Rules of Delta State, 2009 which is an application for the issuance of a writ of summons is prepared and filed by a legal practitioner, the legal practitioner in addition to endorsing his name or name of his firm and his business address within the jurisdiction and the claimant’s address must sign the application. The signature of the legal practitioner in my view authenticates the fact that the application is in fact prepared and filed by the practitioner. It also confirms the claim being presented for adjudication by the legal practitioner on behalf of a claimant. Application for issuance of the writ of summons is one thing, issuance of the writ by the Registrar of the Court is another. There must be a valid application for issuance of the writ before the Registrar can issue the writ. It is after the authentication of the application by the legal practitioner who prepared same that the Registrar takes over the process to issue the writ. A writ of summons is an order or a command from the Court. It is the Registrar’s signature that coverts the application to an order of the Court commanding the defendant(s) to enter appearance to the suit. Since the settled principle of law is that every Court process prepared by a legal practitioner must be properly signed by the legal practitioner, an application for issuance of writ of summons such as Form 1 must be signed by the legal practitioner whether or not the Rule of Court says so. See UGBOMAH V. ALLANAH & ORS (SUPRA), AJIBODE V. GBADAMOSI (SUPRA). I am not unaware of the dissenting opinion of His Lordship, Eko, JSC in AJIBODE V. GBADAMOSI (SUPRA) AT 511-512 (E-A) where his Lordship stated thus:
“No provision of the High Court of Ogun State (Civil Procedure) Rules applicable in 1995 authorized either plaintiff(s) or counsel for plaintiff(s) to issue writ of summons commanding defendant(s) to enter appearance to the suit of the plaintiff(s). In this case, in accordance with the High Court of Ogun State (Civil Procedure) Rules extant as at 24th April, 1995, the writ of summons was issued by the Principal Registrar of the High Court in terms of the claims of the respondents endorsed on the writ of summons. Chief Toye Coker & Co. of counsel for the respondents signed the particulars of claims endorsed on the writ of summons. Since the writ of summons was duly issued by the authorised Registrar or officer of the trial Court, it was entitled to the presumption of regularity under Section 151(1) of the Evidence Act, Laws of the Federation of Nigeria 1990 or Section 168(1) of the Evidence Act 2011. This is so especially as the appellants did not challenge the authority of the Principal Registrar to issue the writ of summons pursuant to the provisions of the High Court (Civil Procedure) Rules empowering or authorizing him to issue the writ of summons, or challenge the action of the Principal Registrar, issuing the writ of summons and endorsing therein the particulars of claim signed by Chief Toye Coker & Co., being attacked.”
See also the dissenting opinion of AGIM, JSC in SOLUMADE V. KUTI (2022) 1 NWLR (PT. 1810) 31 AT 73-76(E-G) and the decision of this Court in JALBAIT VENTURES (NIG) LTD & ANOR. V. UNITY BANK PLC (SUPRA) AT 11-14 (E-A). However, going by the majority position of the Supreme Court in AJIBODE V. GBADAMOSI (SUPRA) and the settled principle of law particularly the pronouncement of the Court in BRAITHWAITE V. SKYE BANK PLC (2012) LPELR-15532(SC) AT 17 (C-E) Per JOHN AFOLABI FABIYI, J.S.C that
“The rules of a Court must be subject to the applicable Law – Legal Practitioners Act; Section 2(1) and 24, which mandate that processes filed in Court must be signed by a Legal Practitioner enrolled in this Court. Rule of Court must bow before the Legal Practitioners Act duly passed by the National Assembly. See Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521 at 534.”
I am of the humble view that the correct and preferable position is that whether or not the rules of the particular Court expressly require the signature of the legal practitioner on an application for a writ of summons, the legal practitioner must sign the writ being a Court process prepared and filed by him on behalf of the claimant. Failure of the legal practitioner to sign the writ shall render the writ invalid. Issue 1 is resolved in favour of the appellant.
On issue 2 which is whether it was mandatory for the claimant to file a dispute plan in this case, appellant’s counsel contends that without a dispute survey plan to which a declaration of title to land will be tied, such declaration cannot be granted. He submitted that the private plan tendered in this case was made in the name of PATRICK CHIKE AKAEZE in 1985 and the respondent is not PATRICK CHIKE AKAEZE. He further submitted that the land has no plot number and it is among other plots sold to interested parties in an area that has no street name. He referred to MOMOH V. UMORU (2011) ALL FWLR (PT.588) 797, DABUP V. KOLO (1993) 9 NWLR (PT. 317) 254.
In response, the respondent’s counsel referred to the pleadings of both parties on the identity of the land in dispute, he submitted that the identity of the land is very clear and there is no reason for the respondent to file a dispute plan. He further submitted that there is no law that bars a party from relying on a property plan to describe a land in dispute and in this case the identification of the land in dispute by the property plan was not disputed by the appellant.
RESOLUTION
The law is trite that in a suit for declaration of title to land, the first duty of the claimant is to clearly identify with certainty and precision the land to which his claim relates. The burden can be discharged by a description of the land with such particulars that a surveyor acting on such description can produce an accurate plan of the land or by tendering a survey plan showing the location, the boundaries and the extent or size of the land. See ARCHIBONG & ORS V. ITA & ORS (2004) LPELR-535(SC) AT 47-48(C-C); (2004) 2 NWLR (PT.858) 590, AIYEOLA V. PEDRO (2014) LPELR-22915 (SC) AT 33 (A-F), (2014) 13 NWLR (PT.1424) 409.
In the instant case, the respondent pleaded the identity of the land to which his claim relates in paragraphs 1 of the statement of claim as follows:
“The Claimant is the first son [Diokpa] of late Patrick Chike Akaeze, a native of Onitsha who died intestate on 24th April, 2004, possessed of the piece of land situate at Umuojife Layout, Asaba, measuring approximately 2527.921 Square Meters, bounded by Survey Beacons Nos. PE 802, YB 1584, YB 1587 & YB 3178 and shown verged pink in Survey Plan No. LSF 4853.”
As rightly submitted by the respondent’s counsel, averments in the statement of claim and statement of defence confirmed the fact that the identity of the land is clearly known to both parties. Above all, the respondent pleaded and tendered a survey plan showing the precise location, boundaries and size of the land in dispute. The appellant did not tender a counter plan. A plan is not a necessity or a sine qua non for the success of a claim for declaration of title. See OFFODILE v. OFFODILE & ORS (2019) LPELR-47851 (SC) AT 6-14 (D-E) where the Supreme Court held that if parties to a land dispute know precisely what area is in dispute and the boundaries of the area “on the ground”, a plan is not an absolute necessity for successfully maintaining an action for trespass and injunction in respect of the area. Also in AKINTERINWA & ANOR V. OLADUNJOYE (2000) LPELR-358(SC) AT 34 (B-C), the Court held that:
“It has always been accepted in our Courts in land cases that where the area of land in dispute is well known to the parties, the question of proof not being really in dispute does not arise. In such a situation, it cannot be contended that the area claimed is unknown nor can the land in dispute be described as uncertain – See Etiko v. Aroyewun (1959) 4 FSC 129; (1959) SCN LR 308; Osho v. Ape (1998) 8 NWLR (Pt. 562) 492.”
There is no law which makes it mandatory for a claimant in a land case to file a dispute plan. Identification of a land in dispute can be done by a property plan showing the location, the size and features on the land if any.
In any case, the appellant did not in any way challenge the accuracy of the property plan tendered by the respondent. He cannot also claim not to know the land on which he put motor mechanics as tenants and collecting rents. Issue 2 is resolved against the appellant.
On issue 3 which is whether the appellant was denied an opportunity to be heard, the appellant’s counsel submitted that the appellant “was foreclosed and judgment was reserved without attempt at adjournment to enable the sick lawyer to attend.” He further submitted that the appellant was not given the necessary opportunity to present his case and therefore there was lack of fair hearing. He referred to SALU V. EGEIBON (1994) 6 NWLR (PT. 348) 23.
In response, the respondent’s counsel submitted that the appellant was absent in Court and no explanation has been offered. He posited that it is inconceivable that a party who abandoned his case can complain of denial of fair hearing.
RESOLUTION
The law is settled that the burden is on the party alleging denial of fair hearing guaranteed by the Constitution to prove the denial. He can only discharge the burden by evidence of the facts and circumstances disclosed by the record of proceedings. This is because allegation of denial of fair hearing is a matter of fact to be decided on the facts and circumstances of a particular case. It is not enough for a party to make a mere rhetoric allegation of denial of fair hearing without establishing same with reference to the record of proceedings. See TODAYS CARS LTD V. LASACO ASSURANCE PLC & ANOR (2016) LPELR-41260(CA) AT 44-45 (D- B), NGADI V. FRN (2018) LPELR-43636(CA) AT 11(A-E), GOVERNOR OF IMO STATE & ORS v. E.F. NETWORK (NIG) LTD & ANOR (2019) LPELR-46938(SC) AT 31- 33, PERO V. ALLASURE (2019) LPELR-47145(CA) AT 12-13 (C), HON V. UMENNADI (2019) LPELR-47023(CA) AT 26(B-D), UMAR V. NVRI & ANOR (2018) LPELR-45628(CA) AT 21-22 (F-A).
In the instant case, the complaint of the appellant’s counsel is that the Court did not adjourn for the sick lawyer to attend Court which means counsel was aware that the case was coming up in Court on 20/11/2013, 16/12/2013 and 23/1/2014. In any case, counsel did not say he was not aware of any of those dates. There is nothing on record to show that the appellant’s counsel communicated the alleged sickness of “the sick lawyer “to the Court. It is clear that counsel assumed that adjournment of a case is a matter of course. The case was adjourned for defence in the presence of counsel. If the appellant’s counsel was absent in Court due to sickness, he had a duty to write and inform the Court which obviously he did not do. It is not enough for a party to merely make an allegation of denial of fair hearing without showing the manner in which the denial occurred. The allegation of denial of fair hearing in the circumstances is unwarranted and has not been established. Issue 3 is thus resolved against the appellant.
On issue 4 which is whether the lower Court was right to enter judgment in favour of the respondent, the appellant’s counsel submitted that the respondent failed to prove any of the five ways of proving title to land and also failed to prove the title of his vendor. It is also submitted that since title to land cannot be granted on admission, the claimant must testify in support of his case but the respondent failed to testify in this case.
In response, the respondent’s counsel submitted that the five ways proof of ownership of land set out in IDUNDUN V. OKUMAGBA (1976) 9 -10 SC. 227 are different from modes of acquisition of title to land. He referred to FATIMEHIN V. LAWANI (2014) LPELR-23476 (CA) AT 18-20 (E-B). He posited that the respondent cannot lose his land because he could not fix his mode of acquisition of the land into the five ways of proving ownership set out in IDUNDUN V. OKUMAGBA. He also submitted that the appellant did not deny ownership of the land in dispute by Umuojife Village of Umuagu Quarters, rather he confirmed that the land is in Umuagu Quarters. On the complaint that the respondent did not testify in support of his case, counsel submitted that there is no law that requires a party to testify in his case. He referred to ZUBAIRU & ANOR MOHAMMED & ORS. (2009) LPELR – 5124(CA) AT 31-33 (B-A), ASUQUO & ANOR V. OMOLE & ANOR (2019) LPELR-47867(CA) AT 42-42(E-B).
RESOLUTION
The law is trite that in a claim for declaration of title to land, the burden of proof lies on the claimant to prove his case by cogent and credible evidence and he succeeds on the strength of his own case. See among the plethora of cases on this principle ORIANZI V. A.G. RIVERS STATE & ORS (2017) LPELR-41737(SC) AT 18-19(D-A), (2017) 6 NWLR (PT. 1561) 224. The burden can be discharged by any of the five ways set out in Idundun V. Okumagba (1976) 9 -10 SC. 227.
However, it is now settled that the five ways set out in Idundun V. Okumagba deals with evidence by which acquisition or title to land can be proved rather the ways or mode of acquisition of title to land which may be by: (a) first settlement on the land and deforestation of the virgin land; (b) conquest during tribal wars; (c) gift, (d) grant – customary (e) sale, (f) inheritance, etc.
See ADISA V. OYINWOLA (2000) LPELR-186(SC) AT 43 (B-D), AJIBOYE V. ISHOLA (2006) LPELR-301(SC) AT 21(A-G).
In the instant case, the respondent pleaded purchase of the land under customary law by his deceased father from Umuojife family in 1977 and inheritance by him and his siblings from his deceased father.
It is settled law that once a party pleads and traces the root of title to a particular person or family, he must establish how that person came to have title vested in him, He cannot ignore the proof of his overlord’s title and rely on long possession. See Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393 at 395, ANUKAM V. ANUKAM (2008) LPELR-500(SC) AT 20 (E-F), (2008) 5 NWLR (PT.1081) 455, NGENE V. IGBO & ANOR (2000) LPELR-1987(SC) AT 31-32 (F-B), OGBAJI V. UTAHILE & ORS (2019) LPELR-47186(CA).
In order to prove their father’s title, the respondent called CW1 who adopted his statement on oat, Exhibit A as his evidence before the Court. He stated that the land in dispute is within Umuojife Layout, Asaba originally owned by the Umuojife family and so much of the family land has been sold to strangers. He witnessed the customary sale of the land in dispute by the family to the respondent’s father in 1977. He narrated how the respondent’s father paid the purchase price, took drinks to the family and how he also witnessed the handing over of the land to the respondent’s father. He mentioned other members of the family who witnessed the transaction. He confirmed that the land was surveyed in 1985 and a copy was given to his family for record purposes. He said the land in dispute is not part of the land in suit no. A/62/87. He was not asked a single question on the sale by his family to the respondent’s father. CW2 is the respondent’s mother. She testified that soon after she got married to the respondent’s father in 1987, he took her to the land in dispute and others which he similarly owned. They were resident outside Asaba but each time they visited Asaba, they visited and inspected the land. They used to engage labourers to clear the land of weeds. Sometime around 1995, they visited Asaba and they used cement blocks to fence the land to demarcate and secure the land. Nobody challenged them throughout the construction exercise. Her late husband who was a federal civil servant had then made up his mind to commerce building on the land but frequent transfers delayed his plan till 24th April, 2004 when he died as a result of illness. On his death, the respondent and his siblings inherited the land in accordance with Onitsha customary law of succession to landed property. She testified further that after my husband’s death, she was engaged by his brothers in a protracted dispute over the ownership of the buildings he already erected along Anwai Road, Asaba. The dispute took her attention away from the land in dispute and by the time she got over the dispute and returned to the land in dispute in 2011, she found motor mechanics on the land and much of the fence had been knocked off. The mechanics claimed that they were put on the land by the appellant. She tried to reach the respondent then, but did not succeed. When she returned to the land to drive away the mechanics and restore the damaged fence, the respondent emerged and challenged her. He confirmed that he put the mechanics on the land as his tenants and that he knocked down the fence. He claimed that the land belonged to him. The challenge led them to the Police. The Police could not delve into the issue of ownership of the land. Since then all efforts made to enter the land, clear same and get rid of the mechanics has been resisted by the appellant who stationed thugs to monitor the land with instructions to prevent her from gaining access into the land.
CW2’s detailed evidence was not challenged under cross-examination in any way whatsoever. Thus the evidence of the respondent’s predecessor in title remains unchallenged. The lower Court was right to accept and act on it. The contention of the appellant that a claimant for declaration of title must testify in support of his case is misconceived in law. The only burden placed on a party to a case is to adduce credible and legally admissible evidence in support or in defence of the case against him.
There is no law that makes it mandatory for a party to testify in support of his case or in defence of the claim against him if he can establish his case or defence through other witnesses called by him. See EZEANAH V. ATTAH (2004)7 NWLR (PT.873) 468, (2004) LPELR-1198(SC) AT 16-17 (B-C), STERLING BANK NIG. PLC V. FALOLA (2014) LPELR-22529(CA) AT 43 (D-E), (2015) 5 NWLR (PT.1453)405, ASUQUO & ANOR V. OMOLE & ANOR. (2019) LPELR- 47867(CA) AT 41-42 (E- B).
Certainly, CW2 was in a better position to give evidence ownership of the land in dispute by virtue of her relationship as the wife of late Patrick Chika Akaeze and mother of the respondent and his siblings who inherited the land. The contention of the appellant that the respondent was never on the land is baseless. The evidence that the respondent’s father took possession of the land in 1977, surveyed the land in 1985 and erection of a fence round the land remains unchallenged. The fact that the appellant broke part of the fence and put mechanics on the land as tenants is not in controversy because he also averred in his statement of defence that he put a mechanic on the land.
The entry into land by a trespasser does not ipso facto put the trespasser into possession. Any such entry is a wrongful disturbance of possession. A trespasser such as the appellant herein who succeeds in seizing possession of land from the true owner by forceful entry cannot resist an action in trespass by contending that he is the one now in possession and not the one from whom he seized or obtained the land. See ANSA & ORS v. ISHIE & ORS (2005) LPELR-497(SC) AT 19 (B-D), (2005) 15 NWLR (PTS48) 210, ECHERE & ORS v. EZIRIKE & ORS (2006) LPELR-IOOO(SC) AT 24-25 (F-B), (2006) 12 NWLR (PT.994) 386. In CARRENA & ORS v. AKINLASE & ORS (2008) LPELR-833(SC) AT 19-20 (B-E), the lower Court was right to award damages for trespass and an order of injunction to prevent the appellant from continuing to trespass on the respondent’s land. Issue 4 is resolved against the appellant.
Though issues 2, 3 and 4 are resolved in favour of the respondent, issue 1 having been resolved in favour of the appellant, painfully the appeal must be allowed and it is hereby allowed. The writ of summons not having been signed by the legal practitioner that prepared and filed it on behalf of the respondent, it is invalid and the jurisdiction of the Court was not properly activated. The result is that suit no. A/212/2014 must be and it is hereby struck out. Parties shall bear their own costs.
JOSEPH EYO EKANEM, J.C.A.: I agree with my learned brother, BOLAJI-YUSUFF, JCA, that, based on an avalanche of authorities by this Court and the Supreme Court, the writ of summons by which this suit was commenced was invalid. That is the harsh reality of the situation.
I accordingly join my learned brother in striking out the suit.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read in advance the judgment of my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA.
I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.
I too hold that the appeal has merit and I allow the same.
I abide by all consequential order (s) in the lead judgment.
Appearances:
Jide Okorji For Appellant(s)
G.A.I. Mowah For Respondent(s)
