IRONBAR v. OKON & ANOR (2022)

IRONBAR v. OKON & ANOR

(2022)LCN/16880(CA)

In the Court of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, September 28, 2022

CA/C/274/2014

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

BARRISTER OROK INANG IRONBAR APPELANT(S)

And

1. NDABO ASUQUO OKON 2. MRS. ELIZABETH FELIX IKANN (SUBSTITUTED BY ORDER OF COURT OF 15/3/2017 FOR THEMSELVES AND ON BEHALF OF PRINCESS UDUAK DUKE FAMILY) RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION OF THE COURT

It is also elementary law that the jurisdictional competence of the Court to determine a suit is fundamental; as such it can be raised at any time, anyhow and at any level of the proceedings in the hierarchy of Courts, including at the Apex Court even for the first time. Therefore, regardless of whether the issue was raised at the trial Court or not, it can be raised on appeal without leave of Court. Though there is no reason to exclude the ruling itself from the record of appeal, nevertheless having raised that issue, it will be determined.

Now, the locus standi or the capacity of a claimant to sue is determined from his pleadings and the reliefs claimed therein that will show whether or not the Claimant has sufficient interest and/or will benefit in the outcome of the case. Once the reliefs sought will confer some benefit to the Claimant, he will have locus standi to sue the defendant. See A. G. AKWA IBOM STATE VS. ESSIEN (supra) referred to by the Appellant’s counsel among others. PER ALIYU, J.C.A.

THE EQUITABLE DOCTRINE OF LACHES AND ACQUIESCENCE

The equitable doctrine of laches and acquiescence is embedded in the latin maxim vigilantibus et non dormientibus jus subvenuint, the law aids those who are vigilant not the indolent. The doctrine is defined as “unreasonable delay in pursuing a right or a claim”. See page 953 of Black’s Law Dictionary, 9th Edition. Also, the Supreme Court in the case of CHUKWUMA VS. IFELOYE (2008) LPELR-862 (SC) explained the applicability of the defence of laches and acquiescence thus:
The authorities, such as Mogaji V. Nuga (1960) 5 FSC 107, Aganran V. Olushi (1967) 1 ALL NLR 177 appear to establish that where a land owner stood by and knowingly by his inaction allowed a stranger to develop the land in good faith without the owner appraising the stranger the defect of his title, then the doctrine of acquiescence may properly be invoked to estop the owner from reaping the benefit of the stranger’s labour. However, if the owner promptly warns the stranger of the defect of his title as soon as he discovers the presence of the stranger on the land and despite the warning, the stranger proceeds to develop the land, then the doctrine of acquiescence may not assist the stranger.
From the above principle of law enunciated by the Apex Court, an important condition for the application of defence of laches and acquiescence is the ignorance of the claimant’s title of the land or a reasonable belief of the defendant that he has valid title to the land he was occupying. This in line with the submission of the Respondents’ learned counsel, relying on the book “Title to Land In Nigeria”, by learned Professor of Law, C. O. Olawoye. PER ALIYU, J.C.A.

THE DUTY OF A RESPONDENT WHERE HE INTENDS TO ATTACK ONE OR SOME GROUNDS OF APPEAL

In any event, there is a judicial consensus that where a Respondent intends to attack one or some grounds of appeal, but not all of them, he must file a motion on notice to that effect before he can validly argue it in the Respondents’ brief of argument. See UBA PLC VS. PEL (2017) LPELR-43202 (CA) and UACN PROPERTY DEV. CO. PLC VS. COUNTY & CITY BRICKS DEV. CO. LTD (2020) LPELR-49779 (CA) to name just a few. This was not done by the Respondents and their “objection” is incompetent and it is struck out. I will proceed with the resolution of issues 3 and 4, which are complaint of the evaluation of evidence led on record by the learned trial Judge before reaching his decision. PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal stems from the judgment of the High Court of Cross River State sitting at Calabar (trial Court), delivered on the 7th February 2014 by Hon. Justice Obojor A. Ogar in respect of Suit No: C/235/97. The suit was commenced by Princess Ukpong Offiong Eniang and Mr. Eyo Eneyo, being the 1st and 2nd Claimants (both of whom are deceased and substituted with the present Respondents in this appeal), by a writ of summons and an amended statement of claim in which they claimed the following reliefs against the Appellant, being the Defendant at the trial Court:
1. N10,000.00 general damages against the Defendant for trespass to the parcel of land known and called NO. 3 Mary Victor Akan, by 2, Chamley Street Calabar.
2. An order of perpetual injunction, restraining the Defendant by himself, agents, privies or others by whatever name called from entering into the said land, the subject matter of this action.
3. An order that the 1st Plaintiff with her family is the holder of right of occupancy and owner thereof of the parcel of land, the subject of this action.
4. An order that the 2nd Plaintiff is rightly put into possession as occupier by the 1st Plaintiff family, in respect of the parcel shown by the perimeter wall on the plan aforesaid.
5. An order that the Defendant, like his father before him is a trespasser on the parcel of land aforesaid.
6. An order that the building known as No. 2 Chamley Street, now housing Ndumex Pharmacy, Livinco Electrical (Nig.) Ltd and a Spare parts store, was constructed by the Defendant’s father in trespass to the land belonging to 1st Plaintiff’s family and is ipso facto, part of 1st Plaintiff’s land aforesaid and goes with it under the principle: Quid quid plantatur solo solo cedit.
7. An account by the Defendant of rents received on the property aforesaid since its construction, and from the carpenter hurriedly put on the land by defendant following the issue and service of writ on him.

The facts of the case are stated in the Consequential Amended Statement of Claim and Reply to the Statement of Defence and Answer to Counter claim contained in pages 25 to 32 of the record of appeal. The Respondents’ claim at the trial Court was that the land in dispute situate in No. 3 Victor Akan Street, by No. 2 Chamley Street Calabar originally belonged to King Duke IX of Calabar, which he inherited from his mother an Efut princess and after his death, the customary title to the land was passed to his children, grandchildren and great-grandchildren including the original 1st Plaintiff who was his great grand-daughter. That the descendants of the late King Duke exercised exclusive right of ownership and possession of the disputed land at various times without let or hindrance and in that capacity, the 1st Plaintiff let the 2nd Plaintiff into possession of part of the land.

The father of the present Appellant was the solicitor of the family of the Respondents whose services as the family solicitor were retained by the grandmother of the 1st Respondent’s predecessor in respect of Appeal No. C/12A/73 – IQUO OKON EKPE VS. UDUAK DUKE EPHRAIM which was decided in favour of the 1st Respondent’s predecessor. The Respondents claimed that the father of the present Appellant was never given that land or any part of it by their family. That his entry into the land was by fraud because while the case he handled for the family lasted at the District Court, Magistrate Court and on appeal, tenants on the land were ordered to pay rents into the Court’s registry. After the case was decided, the Appellant’s father called the children of the Respondents and distributed to them the sum of N650.00 asking them to sign a document of receipt of that sum. The children of the Respondents claimed that they knew that sums of money was the rent on the property on the land that was deposited in Courts, but the Appellant later claimed that he was paying them for the land in dispute which was false and fraudulent. They then returned the money to him informing him they had no intention to sell their land. Upon the said facts stated in their pleadings the Respondents sought the above reproduced reliefs against the Appellant.

The Appellant denied the allegation by his Amended statement of defence contained in pages 33 to 39 of the record of appeal. He asserted that the Plaintiffs are not members of the King Duke IX family and have no authority to represent that family in this suit. That the father of the Appellant came into the possession and ownership of the land in dispute on the instruction and direction of late Princess Uduak Duke Ephraim after the appeal on the land ended in 1975. On the death of Princess Uduak her successors in Duke House tried to dispossess him of the land, but they were unsuccessful. Though the Appellant admitted that Princess Uduak had exercised acts of possession over the disputed land, but he denied that any other person after her death different from the Appellant’s father did so. He asserted that the Plaintiffs want to take advantage of the death of the Appellant’s father to claim his properties from the present Appellant. He also counter claimed as follows:
I. N2,000,000.00 damages for trespass.
II. N3,000,000.00 damages for slander.
III. Injunction to restrain the claimants, their servants, agents and assigns from continuing with the slander of the Defendant in the manner complained about or at all.
IV. A DECLARATION that the land in dispute herein is the property of the defendant’s.
V. Injunction to restrain the Claimants, their servants, agents and assigns from further interfering with the land in dispute herein being a corner plot and developments thereon at No. 3 Victor Akan Street/No. 2 Chamley Street Calabar. And more easily identified as the property within certificate of occupancy No. CA/1356/82 commencing 1/1/82 and registered as No. 13 at page 13 in Volume 215 of the Lands Registry Office, Calabar.

After conclusion of pleadings and pre-trial conferences, the case proceeded to trial. The Respondents called one witness in support of their claims while the Appellant testified and called another witness as PW2 in his defence and in support of his counterclaim. At the end of hearing of witnesses and final written addresses, the learned trial Judge delivered the Court’s judgment and found and held that:
It is clear to me that the defendant is in the 1st Claimant’s land without a title, let alone a valid title. He is therefore a trespasser…. The wrongful invasion of the private property of another is trespass since it is an invasion of the person’s right to exclusive possession of the property. The claimants are therefore entitled to damages for trespass and injunction…

The learned trial Judge granted all the reliefs sought by the Respondent except relief 7, for an account or rent received on the disputed land on which the learned trial Judge held that he found no pleading or evidence to guide him in determining that claim, and he dismissed it. The Appellant’s counter claim was dismissed.

The Appellant was aggrieved and he filed notice of appeal against the Judgment on the 13th February, 2014 relying on seven grounds of appeal to pray this Court to set aside the judgment of the trial Court and to allow his counter claim.

The Appellant’s Amended Brief of Argument was settled by Orok O. Ironbar, Esq., and filed on the 31st March, 2017 and he distilled five issues from the grounds of appeal for the determination of the appeal thus:
1. Whether the Respondents as Claimants established their locus to sue on behalf of Princess Uduak Duke Ephraim Family and their evidence was supported by their pleadings. (Covered by ground 2 of the notice of appeal).
2. Whether the principles of equity like standing by, estoppel, laches and acquiescence and the Evidence Act were properly applied by the trial Court to this matter. (Covered by ground 4 of the notice of appeal).
3. Whether the trial Court properly placed the onus of proof, evaluated and considered the exhibits and other Evidence in this Matter (covered by grounds 1 and 3 of appeal).
4. Whether the trial Court in ignoring the testimony of Princess Uduak Duke Ephraim leaving a will and going ahead to consider the oral tradition over ownership of the property was justified. (Covered by ground 5).
5. Whether the trial Court was correct to dismiss the Appellant’s counter claim. (Covered by grounds 6 and 7 of the notice of appeal).

The Respondents’ brief of argument containing 57 pages, was settled by Dr. Afolabi O. Ogundipe and filed on the 4th May, 2018 wherein he stated in paragraph 3.1 that the Respondents “in addition raises (sic) two issues in reply, and two additional issues for the Cross appeal.” The two “additional issues” of the Respondents are reproduced below:
a) Whether on a balance of probabilities, the Claimants/Respondents have proved better title to the Land in dispute than the Defendant/Appellant, and is accordingly entitled to favourable judgment by the Honourable Court. (Covered by grounds 3 and 6 of appeal).
b) Whether the taking over of the client’s property, the subject matter and subject of the legal representation amounted to professional misconduct for which the defendant/appellant can be reprimanded by this Honourable Appeal Court; and a hand over to the Nigerian Bar Association for disciplinary sanctions on the ethical breaches.

The Appellant’s reply brief was filed on the 2nd July, 2018 but deemed properly filed on the 3rd June, 2020. The appeal will be determined on the five issues distilled by the Appellant, since the Respondents agreed with him on the issues in contention from the grounds of appeal. They will be determined in the order presented by the Appellant.

ISSUE ONE
Whether the Respondents as Claimants established their locus to sue on behalf of Princess Uduak Duke Ephraim’s Family and their evidence was supported by their pleadings.

In arguing this issue, the learned counsel for the Appellant referred us to paragraphs 1, 2, 3 and 4 of the Respondents’ statement of claim in which they pleaded that King Duke the IX was the owner of the disputed property and that the 1st Respondent stated she was the daughter of Princess Uduak Duke Ephraim, one of the children of King Duke IX of Calabar, and suing the Appellant in a representative capacity. That the Appellant in his pleadings denied the representative capacity in which the 1st Respondent claimed to sue him because she has no link with the King Duke IX family and therefore lacked the locus standi to sue as its representative. That having sued the Appellant in a representative capacity on the title to the disputed land which the 1st Respondent claimed was owned by her great-grandmother Princess Uduak Duke Ephraim, daughter of King Duke IX, she has the duty to establish that there was a partition of the property in which the land came to be inherited by her. That the 1st Respondent did not call any member of the family as a witness or present a document to support a partitioning of King Duke IX property or her locus standi to sue on behalf of the family on the disputed land. That her only witness was her biological son, and it was submitted that if the 1st Respondent could not prove her authority to sue on behalf of the King Duke family, her son claiming through her could not have that standing either, especially as his evidence in page 70 of the record did not explain to the Court why a direct descendant of the king or head of that family did not sue on the disputed land. This according to the learned counsel is a clear indication that the 1st respondent did not have permission from the Duke family, the owners of the land in dispute to sue.

He further submitted that the holding of the trial Court in page 118 of the record to the effect that the 1st Respondent had locus standi to sue to protect the family property was in error because there is a difference between suing to protect family property by a member and suing as the representative of the family in the way the 1st Respondent did in this case. That contrary to the holding of the trial Court, the Appellant did not admit paragraph 7 of the Respondent’s statement of claim by paragraph 3 of his pleadings. He argued that his pleading in paragraph 3 of his statement of defence said the exact opposite of what the trial Court said he admitted. He relied on the cases of A. G. AKWA IBOM STATE VS. ESSIEN (2004) 7 NWLR (PT. 872) 288 at 320 (CA) and ORODOEGBULAM VS. ORODOEGBULAM (2014) 1 NWLR (PT. 1387) 80 to urge the Court to resolve issue one in favour of the Appellant.

For the Respondents, it was submitted that the issue of locus standi of the Respondents to sue was settled by the trial Court in a ruling of that Court delivered on the 9th April 1998 and evidenced by exhibit 8 which the Appellant deliberately omitted from the record of appeal. However, the learned counsel conceded that the issue of locus standi of a party to sue is fundamental and capable of robbing Court of its jurisdiction to determine a case. He then submitted that the line of inheritance of the disputed land from King Duke to the original 1st Respondent was proved to be unbroken as shown in paragraph 3 of the Respondents’ pleadings and statement on oath of their sole witness.

That the Appellant’s mere challenge to the line of inheritance stated by the 1st Respondent was not enough without him leading better evidence of title to the land than that led by the Respondents, which he failed to do. The Respondents also argued that the issue of suing in a representative capacity has been settled in the ruling of the trial Court which settled the issue that the Respondents sued on behalf of the family of Princess Uduak Duke Ephraim on the disputed land.

On the argument of the Appellant that since Princess Uduak Duke was only one of the children of King Duke, the Respondents have to prove partitioning of the land in dispute from that family land, the Respondents submitted that the issue whether partitioning of the land took place or not is too extraneous to the subject matter of this appeal, being an internal affair of that family. Further, Appellant did not raise the issue of partitioning of the disputed land in his pleading at the trial Court. This is a fresh issue being raised on appeal and the Court of Appeal is not a place to set up evidence but a place where evidence already set up at the trial Court and not properly weighed by that Court is considered. They referred to the evidence of DW1 under cross-examination where he stated that he did not know when precisely, his father acquired title to the disputed land. Finally on this issue, the Respondents relied on the case of LAWAL VS. A.G. KWARA STATE (2012) ALL FWLR (PT. 618) 618 at 995 and others, to urge the Court to resolve this issue against the Appellant.

By way of reply on points of law, the Appellant submitted that nothing prevents him from appealing against that interlocutory ruling of the trial Court on the locus standi of the 1st Respondent to sue along with the final judgment in this same appeal, vide the case of OKOYE VS. EZEMENIKE (2003) 3 NWLR (PT. 806) 52. On the contention of the Respondents that the Appellant deliberately excluded that trial Court’s ruling from the record of appeal, the Appellant submitted that it was just an excuse argument because nothing stops the Respondents from filing additional record to include what they alleged was omitted by the Appellant, as provided by Order 8 Rule 6 of the 2016 Rules of this Court. He insisted that being great-grandchildren of King Duke does not imbue the Respondents with the authority to deal with his properties in the absence of evidence of partitioning to vest title to the disputed land to 1st Respondent individually.

RESOLUTION
Before delving into the resolution of this issue, it is necessary to address the Respondents’ counsel contention that the issue of locus standi was settled in a ruling at the trial Court and which the Appellant did not appeal against. It is the law that a challenge to the locus standi of the claimant to sue in a suit is a challenge of his capacity to institute the action, which by implication also challenges the jurisdiction of the Court to entertain the suit itself. It is also elementary law that the jurisdictional competence of the Court to determine a suit is fundamental; as such it can be raised at any time, anyhow and at any level of the proceedings in the hierarchy of Courts, including at the Apex Court even for the first time. Therefore, regardless of whether the issue was raised at the trial Court or not, it can be raised on appeal without leave of Court. Though there is no reason to exclude the ruling itself from the record of appeal, nevertheless having raised that issue, it will be determined.

Now, the locus standi or the capacity of a claimant to sue is determined from his pleadings and the reliefs claimed therein that will show whether or not the Claimant has sufficient interest and/or will benefit in the outcome of the case. Once the reliefs sought will confer some benefit to the Claimant, he will have locus standi to sue the defendant. See A. G. AKWA IBOM STATE VS. ESSIEN (supra) referred to by the Appellant’s counsel among others.

The grouse of the Appellant for challenging the 1st Respondent’s capacity to commence this suit is that the original 1st Respondent; Princess Ukpong Offiong Eniang who filed this suit claimed and stated in paragraphs 1, 2, 3 and 4 of Respondents’ pleadings to be the descendant of King Duke IX, the original owner of the land, as being his great-granddaughter, which the Appellant denied by his pleading, the connection of Princess Eniang to King Duke. Secondly, he contended that since the 1st Respondent is claiming the disputed land as representative of King Duke IX family land, she must call evidence to show when the partition of the land took place to make it her individual land.

I scrutinized the referred paragraphs 1 to 4 of the Respondents’ amended statement of claim in pages 25 to 32 of the record of appeal, and for guidance they are reproduced below:
1. The 1st Plaintiff, a trader, is the great-granddaughter of late King Duke IX of Calabar, and she lives and resides at 37 Ephraim Street, Calabar, within jurisdiction.
2. The land the subject matter of this suit is situate in No. 3, Mary Slessor (Now Victor Akan) Street by No. 2 Chamley Street, Calabar, also within jurisdiction of this Honorable Court.
3. The land under customary law originally belonged to King Duke IX of Calabar, and after his death, the customary law title to the land descended to his children, grandchildren and great-grandchildren as follows:
a. Prince Bassey Duke, 1st Son of the said King Duke IX of Calabar, and elder brother of Princess Uduak Duke Ephraim; after his death.
b. Princess Uduak Duke Ephraim, daughter of King Duke IX of Calabar, and younger sister of Prince Bassey Duke; after his death.
c. Princess Antigha Adam Ephraim, daughter of Princess Uduak Duke Ephraim, and mother of Princess Ukpong Offiong Eniang, the 1st Plaintiff herein; also elder sister of Princess Nkese Umo Adam Ephraim, after her death.
d. Princess Nkese Umo Adam Ephraim, younger sister of Antigha Umo Adam Ephraim and aunt of 1st Plaintiff, on her incapacity.
e. Princess Ukpong Offiong Eniang, the 1st Plaintiff herein, and great-granddaughter of King Duke IX of Calabar, suing in a representative capacity.

It is observed that in the above pleadings, the 1st Respondent was suing the Appellant for herself and on behalf of Princess Uduak Duke Ephraim family, not on behalf of the entire King Duke IX family. This fact is stated in paragraph 1 of the Reply to the amended statement of defence and answer to the counterclaim in pages 19-24 of the record wherein the Respondents stated that:
In reply to paragraph 4 of the statement of defence, the Plaintiff states that the suit was brought by her on behalf of herself and the family of Princess Uduak Duke Ephraim, not the wider family of Duke House of Calabar, or the Efiks.

The Respondents particularly pleaded in paragraphs 7, 8 and 9 that the Appellant’s late father was the 1st Respondent’s solicitor whose services were retained by Princess Uduak Duke Ephraim (the grandmother through whom she is claiming the disputed land) to represent her and her family in respect of the title to the same land now disputed. The appeal was decided in favour of the 1st Respondent’s grandmother affirming her right to the title to the land in dispute in the judgment in Appeal No. C/12A/73 – IQUO OKON EKPE VS. UDUAK DUKE EPHRAIM delivered on the 15th October, 1975 (exhibit 1). This exhibit clearly supports the standing of the granddaughter of Princess Uduak to sue in respect of that land as a member of that family, whose title the Appellant’s father successfully defended in the appeal aforementioned.

In the judgment of the trial Court, the learned trial Judge noted correctly in my view that the line of succession to the title of the disputed land pleaded in paragraph 3 of the Respondents’ statement of claim and led in evidence in paragraphs 7 and 8 of their witness’ statement on oath, was unbroken. He then went on to consider how the Appellant responded to the claimants’ line of succession to the title to the land in dispute. His Lordship found that while the Appellant denied (in paragraph 4 of his pleadings) that the line of succession to the title of the disputed land included the 1st Respondent, he however admitted paragraph 7 of the statement of claim, where the 1st Respondent averred that Princess Uduak Duke Ephraim was her grandmother, and daughter of King Duke IX. The 1st Respondent right from the onset, stated clearly the capacity in which she sued the Appellant not on behalf of the entire family of King Duke but that part of his family claiming through his daughter Princess Uduak. Also, the admission of the Appellant of paragraphs 7 and 8 of the statement of claim vide paragraph 3 of his amended statement of defence further supported the right of the 1st Respondent to sue. In that said paragraph 3 contained at pages 33 to 39 of the record of appeal, the Appellant stated that:
Paragraphs 2, 6, 7 and 8 of the statement of claim are admitted, the Defendant will only add that the line of descent relating to the property ownership of King Duke IX does not include Claimant’s herein.

It is unreasonable to say the least, that the 1st Respondent whose grandmother the Appellant’s father represented to defend her title to the land in dispute is admitted to be the daughter of King Duke IX; but the 1st Respondent will be said “not to be included” in the line of descend. She certainly is and I am at one with the learned trial Judge on his holding in page 118 of the record that:
Could the first Claimant be a granddaughter of Princess Uduak Ephraim, who is the daughter of King Duke IX, and not be a great-granddaughter of the said King Duke? To answer that question in the affirmative will not make any sense. The 1st Claimant who is expressed to have taken the action for herself and on behalf of Princess Uduak Duke Ephraim’s family being the granddaughter of Princess Uduak Duke Ephraim is a member of that family and by extension a member of King Duke IX Family. She has all the right to take out this action as she has done to protect what she perceives to be family property.

Also, the contention of the Appellant that there was no evidence to show partition of the land in dispute to make it individual land is a non-issue in view of the fact that the Appellant admitted that his father actually defended the appeal in which Princess Uduak was affirmed to be the rightful owner of the title to the land in dispute. I therefore answer issue one in the affirmative and resolve it against the Appellant.

ISSUE TWO
Whether the principles of equity like standing by, estoppel, laches and acquiescence and the Evidence Act were properly applied by the trial Court to this matter. (Covered by ground 4 of the notice of appeal).

It was submitted for the Appellant that the pleadings of the Respondents and the documentary evidence they relied upon at the trial showed that the dispute to the land started in 1979 and in 1980 when they made the newspaper publication as shown in exhibit 6. They however stood by while the Appellant’s late father went ahead to build a structure on the disputed land, still, they did not sue him until after his death, a period of over 24 years from 1973-1997 before they sued his son the Appellant herein. He submitted that waiting till the death of the Appellant’s father and loss of vital evidence which would have helped in determining the case means that equity will be applied to estop them from claiming the ownership of the disputed property. He relied on the case of ANGBAZO VS. SULE (1996) 7 NWLR (PT. 461) 479 to support this submission.

The Appellant further contended that the Respondent’s witness admission that they had invited the late Appellant’s father to “renegotiate the land” was an acknowledgment that his presence on the disputed land was based on a previous ‘negotiation’ as such his presence on the disputed land could not have been a trespass. That the trial Court’s holding that the Appellant did not deny that the sum of N650.00 was returned to his late father did not take into consideration that the Appellant could not have known the transaction between his father and the Respondent. Secondly, the fact that Appellant’s late father remained in the disputed land even after the Respondents purportedly returned the sum of N650.00 to him since 1980 reinforces the Appellant’s reliance of doctrine of laches. He urged the Court to resolve this issue in favor of the Appellant.

For the Respondents, it was submitted that in view of the evidence on record, the Appellant’s predecessor cannot be said to be unaware of the title of the 1st Respondent to the disputed land having represented her in suits in which her title was thereto was declared. As such, he cannot claim the defence of laches, acquiescence and standing by in this matter. That since the Appellant’s predecessor was aware of the Respondents’ valid title in view of exhibits 3, 4, 6 and 6A, the equitable doctrines cannot come to his aid. On the contention of the Appellant that the Respondents waited till the demise of his predecessor to sue his son for the title to the disputed land, the Respondents submitted that the death of the Appellant’s predecessor cannot be an excuse as it has not changed the fact that the land in dispute is the Respondents’ family land and they did not alienate it to anyone including the Appellant.

By way of reply on points of law, the Appellant raised the defence of statute of limitation relying on Section 1 of the Cross River State Limitation Law which prohibits suits for claims of title to land after the expiration of 10 years from the date the cause of action accrues. He submitted that this suit was commenced in 1997 a period of 17 years after exhibit 4 was written to the Appellant’s father by the Respondents’ solicitors, and they are caught by the statute of limitation.

RESOLUTION:
I should start with the statute of limitation raised by the Appellant in paragraph C.6.4 of his Reply brief relying on the provisions of Section 1 of the Cross River State Limitation Law. The Appellant raised this defence at the trial Court and the learned trial Judge held in pages 120-121 of the record that this action was commenced in 1997 before the promulgation of the Limitation Law, and Section 44 of the Law specifically provided that:
Nothing in this law shall affect any action commenced before the commencement of this Law.
The provisions of Section 44 supra are to the effect that the Limitation Law did not take retrospective effect and could not apply to suits filed prior to its promulgation.

The argument of the Appellant in this appeal against the above holding of the trial Court is that this suit was actually commenced on 18/4/2011 after the Limitation Law has come into force. In contrast to that argument, the Appellant submitted in the last sentence of paragraph C.6.4 of his reply brief that, “The letter was in 1980 and they did not sue till 1997, a period of 17 years. They are caught by the statute of limitation”, which clearly was an admission that he suit was actually commenced in 1997 as was held by the trial Court. The Appellant cannot be allowed to approbate and reprobate at the same time.

In any event, the page 63 of the record that the Appellant referred to contained the proceedings of the trial Court on the suit of 22/2/2011. It was a commencement of pretrial of the matter. That cannot be said to be the commencement of the suit. As I indicated at the beginning of this Judgment, the suit was commenced by a writ of summons filed on the 29th May 1997 and this is contained in pages 1 to 2 of the record of appeal, showing the stamp of the trial Court with that date. The argument of the learned counsel is not supported by the record and the learned trial Judge was on a very strong legal ground in his supra holding and nothing is placed before us of any legal value to upstage that finding. I now proceed to look at the correctness of the decision of the trial Court on the defence of laches and acquiescence raised by the Appellant.

The equitable doctrine of laches and acquiescence is embedded in the latin maxim vigilantibus et non dormientibus jus subvenuint, the law aids those who are vigilant not the indolent. The doctrine is defined as “unreasonable delay in pursuing a right or a claim”. See page 953 of Black’s Law Dictionary, 9th Edition. Also, the Supreme Court in the case of CHUKWUMA VS. IFELOYE (2008) LPELR-862 (SC) explained the applicability of the defence of laches and acquiescence thus:
The authorities, such as Mogaji V. Nuga (1960) 5 FSC 107, Aganran V. Olushi (1967) 1 ALL NLR 177 appear to establish that where a land owner stood by and knowingly by his inaction allowed a stranger to develop the land in good faith without the owner appraising the stranger the defect of his title, then the doctrine of acquiescence may properly be invoked to estop the owner from reaping the benefit of the stranger’s labour. However, if the owner promptly warns the stranger of the defect of his title as soon as he discovers the presence of the stranger on the land and despite the warning, the stranger proceeds to develop the land, then the doctrine of acquiescence may not assist the stranger.
From the above principle of law enunciated by the Apex Court, an important condition for the application of defence of laches and acquiescence is the ignorance of the claimant’s title of the land or a reasonable belief of the defendant that he has valid title to the land he was occupying. This in line with the submission of the Respondents’ learned counsel, relying on the book “Title to Land In Nigeria”, by learned Professor of Law, C. O. Olawoye.

Now in this case, there is no contest in view of the pleadings that the late Father of the Appellant being a legal practitioner and the 1st Respondent’s family lawyer knew the title of the 1st Respondent on the disputed land by reason of his representing Princess Uduak, the grandmother of the 1st Respondent in the appeal referred to in paragraphs 7 and 8 of the statement of claim and admitted by the Appellant in paragraph 3 of his statement of defence. The Court in that case declared Princess Uduak to be the owner of the land in dispute, vide exhibit 1. He is therefore not a total stranger and/or ignorant of the 1st Respondent’s title to the disputed land.
Again, there are documentary evidence led at the trial Court as exhibit 3, which is a handwritten letter dated 2nd January, 1979 from the Respondents to the Appellant’s predecessor warning Appellant’s father, about the disputed land that he “wanted to do something, but you know that you did not made (sic) any agreement with us, so we did not authorize you to do anything.” There is also exhibit 4, the Respondents’ solicitor’s letter to the Appellant’s father dated 10th January, 1980, in which the sum of N650.00 that he distributed to some members of the 1st Respondent’s family purporting to be payment for the disputed land was returned to him, and he was clearly informed by that letter that the Princess Uduak family had no intention to sell the disputed land to him. Also in evidence, undisputed is exhibit 5, another letter dated 14th January, 1980 still from the 1st Respondent’s family solicitor to the Appellant’s late father, the Appellant was requested by the lawyer of the 1st Respondent’s family to “furnish me with the correct amount expended by you by way of gift or otherwise to my client’s family, so as to enable me advise them accordingly.” There are yet exhibits 6 and 6A, being public notices and warnings issued by the 1st Respondent’s family informing the public that the listed lands, including the disputed land, belonged to the family of Late Princess Uduak King Duke Ephraim. The notices were all published in March, 1980.
These undisputed documentary exhibits reinforced the fact that the Appellant’s late father cannot be said to be ignorant of the title of the 1st Respondent’s family to the land in dispute. I find very apt to the facts of this case the holding of RHODES-VIVOUR JSC in ADEJUMO & ORS. VS. OLAWAIYE (2014) LPELR-22997 (SC), speaking for the Apex Court at pages 30-40 alia that:
… For if a stranger builds in my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefits of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assent my legal rights.
It is therefore my view that the learned trial Judge’s finding in pages 120 to 121 that the defence of laches and acquiescence cannot avail the Appellant in view of the unchallenged evidence on record very correct after unassailable. There is nothing submitted before us in this appeal to make me interfere with that finding of fact. I unhesitatingly enter an affirmative answer to this issue and resolve it against the Appellant.

ISSUES 3 AND 4
Issue 3 is Whether the trial Court properly placed the onus of proof, evaluated and considered the exhibits and other evidence in this matter and issue 4 is Whether the trial Court in ignoring the testimony of Princess Uduak Duke Ephraim leaving a will and going ahead to consider the oral tradition over ownership of the property was justified.

In arguing the two issues jointly, the Appellant submitted that it was the 1st Respondent who at the trial mentioned that the late Princess Uduak left a will but the trial Judge did not advert his mind to this issue raised in evidence before him and therefore the judgment is flawed. He argued that the fact that the 1st Respondent failed to produce the Will of princess Uduak meant that if produced it would be unfavourable to her case; and the provisions of Section 167(d) of the Evidence Act should operate against the Respondents. That the claim of the Respondents for the title to disputed land based on customary law of inheritance cannot succeed where there is in existence a Will. The Appellant referred to exhibit 16 of 28/11/75 (in page 157 of the record of appeal) and the evidence of 1st Respondent in page 71, which he contended showed that they called the father of the Appellant to come and re-negotiate terms for the disputed land but he refused. That exhibit 4 talks about executrix of a Will at which time the Appellant’s father had already erected a building on the disputed land. Then exhibit 5 showed that the Appellant’s father expended money by way of gifts, etc to the Respondents’ family and he remained in undisturbed possession thereafter. That all these facts showed that the money he paid was never returned as claimed by the Respondents.

The Appellant further submitted that the holding of the trial Court in page 119 of the record of appeal shows that the learned equated King Duke’s family to mean the same as Princess Uduak’s family and the learned trial Judge made argument for the Respondents that they did not make. That the Court’s finding in respect of exhibits 4, 5 and 16 shows a lack of understanding of the case and investigation of the documents to arrive at its conclusion. He accused the learned trial Judge of concentrating on “thrashing the Appellant’s defence and never bothered about the strength of the respondent’s case as put forward, if any.” For example, the trial Court did not consider the Appellant’s exhibits 19 and 20 showing that the disputed land was Duke family land and that the Appellant’s late father was a member of the Duke family. He submitted also that the learned trial Judge misevaluated the documentary exhibits and he urged this Court to undertake a proper evaluation of the documentary exhibits and to resolve the two issues in favour of the Appellant.

For the Respondents, their learned counsel drew out attention to the fact that ground 4 from which issue 4 was distilled is a fresh issue raised in this appeal for the first time. That the issue of Will of princess Uduak was not pleaded or led in evidence at the trial Court but the Appellant raised it in his final written address at the trial Court, which was the reason that the trial Court did not mention the issue in the judgment. The Appellant failed to obtain leave of Court to raise it as a fresh ground of appeal, and therefore both the ground of appeal and the issue 4 distilled from it are incompetent vide the case of MACFOY VS. UAC (1961) 3 WRN (P.C.) 1405 to the effect that one cannot put something on nothing and expect it to stand.

In the event that they are overruled on their argument supra on the fresh issue, the Respondents submitted that the Appellant by his argument on these issues decided to make a different case for them that they did not make by their pleadings and evidence at the trial Court. This is because the Respondents never stated that they were claiming the title to the disputed land under a Will, nor did they claim the disputed land individually but collectively as their family land. Their claim of title to the land in dispute was under the customary law of inheritance, and therefore, the provisions of Section 164 of the Evidence Act cannot be applied to their case in respect of the Will which was not the basis of their claim.

It was also argued that exhibit 16 in which the Appellant contended that ‘him’ in that document referred to his late father and the disputed land was a gift to him is not before this Court. This is because exhibits 4 and 5 showed that the money the Appellant’s father paid in disguise was returned to him. The Respondents submitted that the Appellant’s witnesses’ testimonies are tainted with a lot of contradictions and inconsistency and at variance with the pleadings and evidence and go to no issue. For instance, in paragraph 2 of the Appellant’s further witness statement on oath, he stated that the property in dispute came into the possession of the Appellant’s father and was confirmed after about 1972 after the judgment of the Magistrate Court and the appeal ended in 1975. This means that the Appellant’s father came to know about the disputed land in 1973 when he represented Princess Uduak in suit NO: C/12A/73 which was dismissed and the Court held that the Respondents’ predecessor in title had a better right of ownership and possession of the disputed land. That it was this relationship he had with the Respondents’ predecessor that led the Appellant’s father to show interest in the land and after the demise of Princess Uduak, he used his influence as a lawyer to deprive her family of the land. That all the argument and documents relied upon by the Appellant are against him and greatly aided the Respondents’ case who proved by evidence their claims of title to the disputed land.

RESOLUTION
I will begin by determining the “objection” raised by the Respondents’ learned counsel in paragraph 7.1 (page 15) of their briefs to ground 4 of appeal from which he wrongly said that issue 4 was couched, on the ground that it was a fresh issue raised for the first time in this appeal without the Appellant first seeking and obtaining the leave of Court to raise it. I should point out that Issue 4 is actually distilled from ground 5 of appeal and not from ground 4 of the appeal. In any event, there is a judicial consensus that where a Respondent intends to attack one or some grounds of appeal, but not all of them, he must file a motion on notice to that effect before he can validly argue it in the Respondents’ brief of argument. See UBA PLC VS. PEL (2017) LPELR-43202 (CA) and UACN PROPERTY DEV. CO. PLC VS. COUNTY & CITY BRICKS DEV. CO. LTD (2020) LPELR-49779 (CA) to name just a few. This was not done by the Respondents and their “objection” is incompetent and it is struck out. I will proceed with the resolution of issues 3 and 4, which are complaint of the evaluation of evidence led on record by the learned trial Judge before reaching his decision.

The Appellant has referred us to the evidence of PW1 in page 71 of the record which the Appellant contended that raised the issue of will at the trial Court. This evidence of PW1 was under cross-examination and contained in pages 70-72. His evidence in chief is in the two statements on oath sworn on the 24th June, 2011 and 2nd April, 2013 respectively, which he adopted as his evidence in chief. The first witness statement on oath is at pages 43 to 46 of the record of appeal, while his second statement is contained in pages 47-50 of the record of appeal. The contention of the Appellant is that the witness stated in paragraph 1 that he is “the grandson of Princess Antigha Umo Adam Ephraim, the Executrix of the Will of Princess Uduak Duke Ephraim…” which according to the Appellant meant that Princess Uduak left a will. That means, according to the Appellant, the Respondents’ claim of the disputed land under customary law cannot be sustained if there is a will. The learned counsel failed to point to any principle of land law which supports his contention that assuming Princess Uduak left a will, it will adversely affect the 1st Respondent’s claim of the disputed land under customary law. In any event, there was no evidence of a Will led at the trial Court in respect to the title to the land in dispute. The claims of the Respondents and indeed the counterclaim of the Appellant are all on traditional customary law of inheritance as stated clearly in their pleadings and evidence led in support as I already analyzed under my resolution of issue 1 supra.

The Appellant also referred us to exhibit 5, the Respondents’ solicitor’s letter to the father of the Appellant in which he (Appellant’s father) was asked to explain the money he claimed he expended as gifts to the family for the landed property. But there was also exhibit 4, by which the Respondents returned the sum of N650.00 that he purportedly paid for the land, this documentary evidence was never denied by the Appellant. There is no other evidence on record from the Appellant showing any other sums of money expended on the land apart from that sum. The Appellant did not also state whether the request of the 1st Respondent’s family solicitor in exhibit 4 for further particulars on the claims of the Appellant’s predecessor was furnished. His argument under this head of issue 4 is therefore speculative and baseless.

The Appellant also contended that the learned trial Judge did not consider the Appellant’s exhibits 19 and 20 which showed that the disputed land was King Duke IX family land and not that of the 1st Respondent. I have examined these exhibits tendered by the Appellant and transmitted along with the record of appeal as I did all the others supra. Exhibit 19 is an affidavit sworn to by the Appellant’s predecessor in title on the 21st January 1981. He deposed therein that he is the owner of the disputed land given out to him by his family King Duke Family of Calabar. He also stated in paragraph 5 of his affidavit:
That a total sum of N850.00 (Eight Hundred and fifty Naira) had been paid by me to the children of the late head of the family, Madam Uduak Duke Ephraim in respect of the building which is on the land and I attach their receipt herein as exhibit ‘A’. (Underlining provided).

The Appellant has clearly admitted Princess Uduak as the owner of the disputed land and even admitted in paragraph 5 of his affidavit supra that she was the head of King Duke family of Calabar. It is observed also that exhibit 19 was sworn on the 21st January, 1981 after the Respondents’ exhibit 3, (dated 1979), exhibit 4 dated 10th January 1980, exhibit 5 dated 14th January, 1980, while the public warnings, exhibits 6 and 6A were published by the Respondents after the affidavit of the Appellant’s father, i.e. on the 21st and 27th March 1980. This fact indicated that even after receiving the refunds of N650.00 vide exhibit 4, two letters of cease and desist in exhibits 2 and 5, the Appellant’s predecessor still proceeded to make a declaration in exhibit 19 that Princess Uduak has given him the disputed land, without any proof to that effect. In fact, the Appellant’s exhibit 19 stating the above quoted averment completely knocked off the entire case of the Appellant and lends strong support to the claims of the Respondent on the ownership of the land.

Exhibit 20 that the Appellant referred to is a letter dated 20th September, 1975 addressed to his father from the solicitor of Etubom Effiom Bassey, head of King Duke family who succeeded Princess Uduak. There is nothing in this exhibit that showed the Appellant as the owner of the disputed property. I cannot severe the contents of this document and begin to determine who “him” was referred to in the letter. In any event, the letter was written on 20th September, 1975, the same year the appeal of Princess Uduak was concluded in her favour in respect of the ownership of the disputed land. In view of these exhibits, the learned trial Judge indeed placed the burden of proving title to the land on the Respondents which he held they have done as against the Appellant’s contradictory and unreliable evidence. Civil cases are determined on preponderance of evidence and the evidence in this case certainly favours the Respondents strongly, including the Appellant’s own evidence. In addition, I adopt all that I stated in the course of my resolution of issues 1 and 2 supra in also resolving issues 4 and 5 against the Appellant.

ISSUE 5
Whether the trial Court was correct to dismiss the Appellant’s counter claim? The Appellant adopted his argument in support of issues 1 to 4 supra in support of this issue. He further argued that the judgment of the trial Court at page 117 of the record in which it held that the claims of the Respondents and counter claim of the Appellant are essentially for title to land and damages for trespass showed that from the onset, the trial Court excluded the Appellant’s counter claim for slander and claim for N3million damages against the Respondents. The counter claim of the Appellant for slander was for clear allegations of fraud, abuse of professional conduct, breach of ethics against the Appellant’s late father which the Respondents failed to prove. On the other hand, the Appellant contended that testimony of his witness (DW2) alleging that the 2nd Respondent approached him for a fraudulent arrangement was allowed by the trial Court even after objection, but not a single question was asked during cross-examination that discredited DW1. Therefore his counter claim for slander was proved but the trial Court ignored it.

On the counter claim for the title to the land in dispute, the Appellant submitted that exhibit 20 shows that after the illegal tenants of the land were ejected, they ran to the King Duke family and not the children of Princess Uduak or the Respondents, which confirms the Duke family as the owners of the land in dispute. He pointed out that the sole witness of the Respondents was shown to be an unreliable witness when he stated that he was 65 years old and still a civil servant when it is a common knowledge that civil servants retired at the age of 60 years. That there were other discrepancies in exhibits 7, 18, 18A and 3 which were pointed out to the trial Court by the Appellant but were ignored. That there was clear allegations of abuse of professional conduct, breach of ethics and absolute fraud against the Appellant and the memory of his late father Chief Orok Orok, whom the Respondents admitted that they only met him in 1993 in occupation of the disputed land.

In response, to the Appellant’s issue 5, the Respondents submitted that it was correct as was held by the trial Court that the Appellant’s counter claim and the Respondents’ main claim are both essentially the same for declaration of title to the disputed land. The Appellant only added the counter claim of slander in order to divert the trial Court’s attention from the main dispute between the parties. The Respondents finally argued that the Respondents discharged the burden of proof placed on them and established their title to the disputed land, while the Appellant failed to prove his counter claim of title to the said land.

In his reply on points of law, the Appellant relied on the case of BALOGUN VS. LABIRAN (1988) 3 NWLR (PT. 80) 66 at 80 to the effect that a Court is obliged to consider and pronounce on all issues raised before it so that the Court of appeal will have the trial Court’s opinion on such issues. In this case, the trial Court failed to pronounce on the Appellant’s counter claim for slander. On the argument of the Respondents on whether on the balance of probabilities, the Respondents proved better title to the disputed land than the Appellant, the Appellant submitted that the sole witness who testified for the Respondents was not Princess Ukpong Offiong Eniang. On the other hand, the Appellant testified that the disputed land was gifted to his father by the Duke family and that gifts inter vivos are known and acknowledged.

RESOLUTION:
The Appellant’s complaint under this issue is that his claim of slander against him and the memory of his late predecessor was not considered by the trial Court, but only the claim of title to land was pronounced upon. The record shows that the learned trial Judge held in page 122 of the judgment that the Appellant’s predecessor was on the 1st Respondent’s land “without a title, let alone a valid title. He is therefore a trespasser” in wrongful invasion of the 1st Respondent’s private property on which basis the learned trial Court granted the reliefs of the Respondents and awarded damages to them. The Respondents’ title to the disputed land was therefore affirmed by the trial Court correctly in my view on the basis of the evidence on record.
Therefore, having been found to be a trespasser, the Appellant’s counter claim on the same property must fail as rightly held by the trial Court. On his counter claim of slander, a tort of defamation against him and the memory of his late predecessor even if that is a competent claim on behalf of a living and deceased solicitor, it still forms part of the counter claim, the basis of which was right to the title to the disputed land which failed. This must also fail being an ancillary claim dependent on the success of the main counter claim of title to the disputed land. I resolve issue 5 against the Appellant.

In the final analysis, having resolved all five issues against the Appellant, the appeal failed and it is hereby dismissed by me. The judgment of the trial Court is hereby affirmed by me. I award cost of N100,000 against the Appellant in favour of the Respondents.

CROSS APPEAL
The notice of cross-appeal was filed on the 2nd May, 2018 by the 1st and 2nd Respondents against part of the decision of the trial Court dismissing their relief 7 in which they prayed the trial Court to order the Appellant to render for rents and for the possession of the disputed land. The learned trial Judge found and held that:
On the claim for account, I find no pleading or evidence to guide me in determining that issue. That head of claim fails.

The Cross-Appellants relied on three grounds of appeal to urge this Court to order the Cross Respondent to give full account of the total rent collected on the property from 1972 to 7th February, 2014 when the judgment was entered in their favour, amounting to N9,541,900 and sum of N1,666,000.00 rent collected by the Appellant in defiance of the trial Court’s judgment up to June 2015 and subsequent monthly rents, during the pendency of this appeal from July 2015 at N98,000.00 per month. They also prayed that we order the Appellant to immediately surrender possession of the property to the Cross Appellant including. And an order condemning the professional misconduct and ethical breaches of the Appellant/cross Respondent and/or refer the embarrassment to the NBA and N10million general damages, N6.5million cost of litigation and N1million general damages.

The cross Appellants filed their Cross Appellant’s Brief of argument on the 4th May 2018 and on page 27 thereof, they raised three issues for the determination of the cross-appeal:
1. Whether the lower Court’s reasons for refusal to make an order touching on rent/account and possession of the subject matter by the Appellant/Defendant to the Respondents/Cross-Appellants was proper in the circumstances.
2. Whether the surreptitious taking over of the Client’s (Respondents/Cross-Appellants’) property, the subject matter of this legal representation amounted to a breach of solicitors/client fiduciary relationship which should be condemned by the bench and sanctioned by the Bar.
3. Whether the N10,000.00 (ten thousand Naira only damages awarded by the lower Court and without cost and/or litigation cost was adequate and/or proper in the circumstance.

The Appellant/Cross-Respondent filed his Reply Cross-Respondent’s Brief of argument wherein he adopted the three issues distilled by the Cross-Appellants. I also adopt the three issues for my determination of the cross-appeal.

ISSUE ONE
In arguing this issue, the Cross-Appellants submitted that they pleaded the state of the rent and led evidence to show that while the suits lasted at the District Court, the Magistrate Court and Appeal in C/12A/1973, tenants on the disputed land were told to pay rents into the Court which was collected by the Appellant’s predecessor and distributed to them, but they later returned it when he purported it to be prices he paid for the disputed land. He referred to paragraph 13 of the amended statement of claim. It was also submitted that the particulars of the rents and tenants were led in evidence before the trial Court, but the trial Court still refused this head of claim. He lamented that in the absence of general damages, the Respondents only got empty victory and they have been fighting this battle since 1972. That exhibits D1 and D2 are the exhibits supporting the Respondents’ claims of account of rent.

On the possession of the land declared as the Respondents, the learned counsel submitted that the Appellant is still in 100 percent occupation of the land in spite of the perpetual injunction issued against him. He urged the Court to hold that the Respondents/Cross-Appellants are entitled to the sums of monies he listed for rents, general damages and cost of litigation.

The Appellant/Cross-Respondent in response to the argument of the Cross-Appellants submitted that rent is different from an account and most certainly different from Court’s direction to the tenants. That the Cross-Appellants cannot ask this Court to give them judgment based on materials not placed before the trial Court.

RESOLUTION
The Cross Appellants’ contention is that they pleaded facts in support of their relief 7 and led evidence in support. They referred us specifically to paragraph 13 of the pleadings and below was what they pleaded in that paragraph and paragraph 14:
13. While the suits in the District Court, the Magistrate Court and the Appeal in C/12A/73 aforesaid lasted, tenants of Udoh Money Hotel aforesaid were ordered by Court to pay rents into Court awaiting the final outcome of the appeal.
14. When the appeal was decided in favour of 1st Plaintiff’s predecessor in title, Princess Uduak Duke Ephraim, Defendant’s father and Solicitor to Princess Uduak Duke Ephraim later called the five children of his client, his client having died, and distributed the sum of N650.00 to them, asking them to sign a document as having received that sum. The children knew that money to have come from the rent paid into Court and costs. Defendant’s father later claimed he was paying for the land the subject matter of the suit or part thereof. Claimants state that this claim is fraudulent.

There was nowhere in the above pleadings where the sums of money listed in the Cross Appellants’ brief of argument was pleaded. The above pleading was only in respect of the Appellant’s predecessors attempt to take over the land the title to which he had none as was rightly declared by the trial Court and affirmed by this Court in the main appeal. Rents collected on property as listed by the Cross Appellants fall within the realm of special damages, which must be specifically pleaded and proved with clear evidence. Clear pleadings and evidence to support this head of claim was clearly absent in this case, and the learned trial Judge was right to hold that he found no evidence to guide him into determining that claim of the Cross Appellants.

It is also observed that there is no exhibit ‘D1’ and ‘D2’ anywhere in the record of appeal. The exhibits were numbered by the trial Court as exhibits 1 to 8 for the Cross-Appellants (Claimants) and 9 to 21 for the Cross Respondent (defendant). That submission has no basis on the record of appeal. Note that an appeal is by way of a hearing of the case and new issues cannot be raised outside the record of proceedings of the lower Court.

On the issue of possession of the disputed land, having been declared a trespasser and an injunction issued against the Cross Respondent, he must vacate the land immediately and hand over possession of the entire land to the Cross Appellants especially in view of the fact that in declaration three at page 123 of the record, the trial Court declared correctly and affirmed in the main appeal that; “the building now housing Ndumex Pharmacy, Livinco Electrical Nig. Ltd and a spare parts store on No. 2 Chamley Street, Calabar, constructed by the defendant’s father was done while in trespass on the land. See Rhodes-Vivour holding in ADEJUMO & ORS. VS. OLAWAIYE (2014) LPELR-22997 (SC), (supra), that “…. For if a stranger builds in my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefits of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assent my legal rights.”
The Cross-Appellants are entitled to the immediate possession of the land described and all that is on it as declared by the trial Court and this Court in the main appeal. Issue one is partly resolved in favor of the Cross Appellants only with regards to their entitlement of immediate possession of the land and all the buildings on it constructed illegally by the Cross Respondents while in trespass on the land.

ISSUE TWO
The contention of the Cross-Appellants under this issue is that the Cross-Respondent has breached the professional ethics in his relationship with the Cross Respondent and this Court should condemn it and refer it to the NBA for disciplinary action against him. Again, I repeat that an appeal is a re-hearing of the case and parties are bound by the case they put up at the trial Court and not change course on appeal. The Cross Appellants agreed with the trial Court in the main appeal that their claim and the counter claim of the Cross Respondent was for title to the disputed land and damages for trespass and injunction. The Cross Appellant cannot change the character of that claim now on appeal, and especially as there was no pleadings or evidence to support their assertion on the record of appeal. I resolve this issue against the Cross Appellant.

ISSUE THREE
The Cross Appellant’s grouse under this issue was inadequacy of damages awarded to them for trespass to their land against the cross Respondent of N10,000 and failure of the trial Court to award them cost of action and legal fees. Again, I am bound by the record of appeal transmitted to this Court by the Cross Respondent on 3/7/2014. The first claim of the Cross Appellants in their writ of summons as already reproduced supra is for; “N10,000.00 damages for trespass on the land of the 1st Plaintiff, that is, No. 3 Mary Slessor (Now Victor Akan) Street….” Same stated in relief (1) stated in their final pleading in pages 25-31 of the record of appeal. There was no claim for cost of litigation, solicitors’ fees, etc now being sought under this issue. The trial Court was right to refuse to order what was not claimed before it. I resolve this issue against the cross Appellant.

Having resolved issues 2 and 3 against the cross Appellants and only partly resolving issue 1 in their favour, the cross-appeal partly succeeds only on the claim of possession of the disputed land and the buildings attached thereto. I make or order of cost.

RAPHAEL CHIKWE AGBO, J.C.A.: I read in advance, the lead judgment of my learned brother Aliyu, JCA and I agree with him completely in both his reasoning and conclusions. I have nothing useful to add.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of previewing the judgment just delivered by my learned brother, BALKISU B. ALIYU, JCA and I agree in toto with the reasoning and conclusion in dismissing the appeal.

The law is trite that in an action for declaration of title to land; the Court would always give judgment to the party with a better title as established in evidence. In the instant case, the respondents having established a better title at the lower Court, they are per force entitle to possession of the land in dispute. In the circumstances, I too dismiss the unmeritorious appeal and abide by all the consequential orders including the order as to costs in the main appeal. Furthermore, the cross-appeal is also allowed in part as regards the claim of possession to the disputed land being the natural consequence of establishing better title by the Cross-Appellants.