MR AMAKU EFFIONG ENE v. CHIEF PAUL BASSEY ETIM (2011)

MR AMAKU EFFIONG ENE v. CHIEF PAUL BASSEY ETIM

(2011)LCN/5031(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of March, 2011

CA/C/171/2010

RATIO

THE RULE OF NATURAL JUSTICE

It is a cardinal principle in pleadings derived from the rule of natural justice of audi alteram partem that a party or a witness should know in advance through the pleadings what he is going to face or defend in court to enable him prepare for the defence, rather than groping in the dark and in the realm of the unknown and designed to avoid element of surprise being sprung on the opposite party. See: GEORGE v DOMINION FLOUR MILLS LTD. (1976) 1 SCNLR 117; GEORGE v U.B.A. LTD. (1972)8/9 SC 264: OJO-OSAGIE v. ADONRI (1994) 6 NWLR (349) 131; GHIGBU v. TONIMAS (NIG) LTD. (1999) 3 NWLR (Pt.593) 115. PER. KUMAI BAYANG AKAAHS, J.C.A.

LAW OF TORT: TRESPAASS TO LAND

According to the learned authors Winfield and Jolowicz on Torts, 17th Edition by W. V. H. Rogers, par. 13 – 9 at page 627 – “A person is not a trespasser if he is on land with the permission; express or implied, of the possessor.” See ROBSON v HALLET (1967) 2 Q.B. 939 at 950 – 951, per Lord Parker CJ. The lessee would continue to enjoy the status of licencee until he disputes the landlord’s title to the land or alienates the whole or part of the piece of land let out to him without the landlord’s consent. Where this occurs the landlord will be entitled to an order of forfeiture and re-entry. See DOKUBO v BOB-MANUEAL (1902) 1 ALL NLR 113; TAIWO v AKINWUNMI (1975) 6 SC 143; ONYIA v. ONYIA (1981) 1 NSCC 319; SALAMI v OKE (1987) 4 NWLR (Pt. 03) 1 and ONWUGBUFOR v OKOYE (1996) 1 NWLR (Pt.423) 252. PER. KUMAI BAYANG AKAAHS, J.C.A.

Before Their Lordships

KUMAI BAYANG AKAAHSJustice of The Court of Appeal of Nigeria

JA’AFARU MIKAILUJustice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria

Between

MR AMAKU EFFIONG ENEAppellant(s)

AND

CHIEF PAUL BASSEY ETIMRespondent(s)

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): In the amended Statement of Claim dated 21/7/2008 the Plaintiff suing as the Administrator of the Estate of Late Prince Edem Effiong Edem Ita claimed the following reliefs against the Defendant:-
“WHEREOF the Plaintiff claims as follows:
1. A declaration that by virtue of the judgment in C/26/82 the Plaintiff is vested with a deemed Right of Occupancy over the property known as No. 12, Mayne Avenue Extension, Calabar.
2. An order of forfeiture of the property situate (sic) at No. 12 Mayne Avenue Extension, Calabar from the Defendant.
3. A declaration that all agreements of sale, leases, gifts and grants whatsoever made by the Defendant and/or in favour of the defendant without the consent of the plaintiff’s family in respect of the property lying and situate at No. 12 Mayne Avenue Extension, Calabar are null and void and totally of no effect.
4. An order of perpetual injunction restraining the Defendant by himself, his servants, and agents or otherwise whosoever from entering the said property lying and situate at No. 12 Mayne Avenue Extension, Calabar or doing any manner of work therein.
5. N20 million damages for trespass.
Cost of N50,000.00
The Plaintiff averred that he is the administrator of the estate of Prince Edem Effiong Edem Ita’s family and the property shown in Survey Plan No. DAACO/CR/19/LD 2 drawn by ANIYOM SURVEYS, chartered Geomatic surveyor was a subject matter in suit Nos.C/16/77 and C/26/82 which belonged to Prince Edem Ededem Archibong (whose name was abridged to Prince Edem Effiong Edem Ita). He owned a large expanse of land bounded by Bateba street in the North, Goldie street by the south, Alexander Edem Edet by the West and Mma Amika land by the East. The Plaintiff on his return from the National Youth service corps programme in 1976 noticed that one Bassey Edet Ekong (a.k.a Akamba De Boy) had encroached into a large portion of his family’s land and sold same to many people including Madam Inyang Effiong Ene (Defendant’s mother) without the consent of his (Plaintiffs) family members. The family represented by Madam Ewang Edem Effiong and Madam Atim Edem Effiong (Plaintiffs mother) instituted action in Suit No. C/16/77 but they were non-suited. They then commenced another action in suit No. C/26/82 against Bassey Edet Ekong for trespass and a declaration of a right of occupancy over the land encroached upon and sold by Bassey Edet Ekong including the portion sold to the Defendant’s mother. The court in suit C/26/82 delivered judgment in favour of his family and also ordered all the tenants who bought land from Bassey Edet Ekong to atone tenancy to his family but the Defendant refused. An appeal against that judgment was struck out on 20/1/94 in Appeal No. CA/E/96/95. In an effort to enforce the judgment following the refusal by the defendant to atone the tenancy, an application was brought before the chief Magistrate’s Court, Calabar, in suit No. MC/477/06 which granted an order ejecting the Defendant from the property but the Defendant applied to the High court in suit No. HG/106/2007 for order of certiorari to quash the proceedings in suit MC/47710:6 and this was granted on 11/5/2007. It was on account of the High court quashing the proceedings in the Chief Magistrate’s court and re-instating the Defendant to the premises that made the plaintiff to institute action in suit No.HC/144/2007 where he obtained judgment in his favour from which the Defendant filed this appeal dated 9/7/2010 containing two grounds of appeal (see pages 234 – 235). The grounds are:
GROUND 1
The learned trial Judge erred in law by assuming jurisdiction to entertain the suit which is a land matter whose cause of action is statute barred.
PARTICULARS OF ERROR :
The defendant/appellant acquired his title to the disputed property in 1971 and had remained in undisputed possession since then only for the plaintiff to sue in the year 2007 and the learned trial Judge found for the plaintiff contrary to the express provision of Section 1 of the Limitation Law Cap L14 Laws of Cross River State of Nigeria 2004.
GROUND 2
The learned trial judge erred in law when he held that the defendant/appellant is affected by the judgment of KOOFREY CJ delivered in Suit No.C/26/82 contrary to the claims in the (sic) and the body of the said judgment.
In the Writ of Summons in C/26/82 and as the plaintiffs predecessors in title particularly in paragraph 3 of the claim wanted a conciliation of any ported agreement of sale or lease made by the defendant to the land in dispute dating from 1976 to various of his purported tenants including that Okon Nset of 109 Goldie Street, Calabar Registered as Deed No.65/65.61 dated 21/12/73.
The following three issues were formulated for determination:-
1. Whether the learned trial Judge was right in assuming jurisdiction and finding for the plaintiff/Respondent when the action was statute barred by virtue of section 1 of the Limitation Law cap. L14 Laws of cross River state 2004.
2. Whether the learned trial Judge was right in fairing to consider the equitable defences of laches and acquiescence raised by the Defendant/Appellant in his favour.
3. Whether from the facts and circumstances the judgment in suit No. c/26l82 did affect the Defendant/Appellant as to fix him with liability for trespass.
The Respondent raised two issues for determination as follows:_
(i) Whether the lower court was right in holding that the action of the respondent was not statute barred?
(ii) Whether the learned trial judge rightly held that the land purportedly acquired by the appellant from Bassey Edet Ekong was part of the land in dispute in Suit No.C/26/82 and if so, was the appellant bound by the judgment in that suit?
The grounds of appeal cannot accommodate issue No. 2. The defences of laches and acquiescence were raised in the statement of defence and dealt with in the judgment. Since there is no appeal on it, it is taken that he Defendant/Appellant was satisfied with the resolution of the issue; hence he did not complain against it in any ground in the Notice of Appeal filed.

Issues are formulated from grounds of appeal and when there is no ground that supports the issue, the issue should be discountenanced. see AFRICAN PETROLEUM LTD. v. OWODUNNI (1991) 1 NWLR (pt.210) 391; OGUNLADE v ADELEYE (1992) I NWLR (pt. 260) 409; BRAWAL SHIPPING LTD V ONWADIKE CO. LTD (2000) 11 NWLR (Pt. 678) 363.

I therefore discountenance issue 2 in the Appellants brief and strike out the argument in support of the issue. I will now re-number issue 3 in the appellant’s brief as issue 2.
On issue No. 1, learned counsel for the Appellant read section 1 of the Limitation Law cap. L14 Laws of Cross River state of Nigeria 2004 and argued that by the judgment order contained on page 186 of the record of proceedings particularly paragraph 2 thereof, it is indisputable that the learned trial Judge awarded judgment in favour of the plaintiff based principally on the judgment in Suit No.C/26/82. He said the defendant/appellant tendered Exhibit 17 as his document of the which was executed as far back as 4th day of March, 1972. He pointed to the fact that judgment in suit C/26/82 was delivered on the 25th day of February, 1986 but the action whose judgment is now appealed against was commenced on the 2nd day of May, 2007 which period is clearly 21 years after the cause of action arose on 25/2/1986. He submitted by relying on TEXACO PANAMA INCORPORATION v. SHELL DEVELOPMENT CORPORATION OF NIG. LTD. (2002) 3 MJSC 1 (2002) 5 NWLR (pt.759) 209 and POPOOLA ELABANJO & ANOR. v CHIEF (MRS.) GANIYAT DAWODU (2006) 6 KLR (Pt. 221) 2305 at 2310 that a cause of action is statute barred if it is brought beyond the period laid down by the statute. Consequently counsel submitted that suit No.HC/144/2007 having been commenced more than ten years as prescribed by the Limitation Law was statute barred and the judgment of the court below was given without jurisdiction and therefore a nullity.
On the issue whether the Defendant/Appellant is affected by the judgment in C/26/82, learned counsel answered in the negative arguing that if one looks at relief No. 3 and the award of damages by the Hon. chief Judge which was specifically directed at the defendant’s trespass in collecting rents since 1976, a simple and literal interpretation of both relief No. 3 and the judgment is to the effect that interests predating 1976 were not affected by the suit and the judgment. The learned trial Judge in suit No. HC/144/2007 misinterpreted the judgment in C/26/82 and created additional liabilities not contemplated by either the parties to the suit or the Judge who delivered the judgment and this has occasioned a miscarriage of justice against the appellant. He submitted that the Plaintiff/Respondent and his progenitors had all along known that the Defendant/Appellant was not a party to the proceedings in suit No.C/26/82 or affected by the judgment therefrom and this had informed their inability to proceed against him until 2007. Citing UBA PLC v. JARGABA (2007) MJSC 113 at 117: (2007) 11 NWLR (Pt. 1045) 247, learned counsel submitted that a court’s order affects directly those persons who have had cause to be subjected to the litigation process before the court either directly or by necessary extension of such process. He therefore urged this court to allow the appeal.
Learned counsel for the Respondent argued in his brief that the claimant predicated his action on the judgment in Suit No. C/26/82 which judgment ordered all the tenants on the land who acquired title through the defendant in that case to atone tenancy to the claimant’s family and this included the appellant. He contended that it is common ground from the evidence before the lower court that the appellant acquired title to the land in dispute from Bassey Edet Ekong who was sued in Suit No. C/26/82 and judgment was delivered against him from which he appealed but the appeal was struck out. That judgment ordered all those who acquired title to Edem Effiong Edem Ita’s land through Bassey Edet Ekong who included the appellant to recognise the respondent’s family as their landlord. The appellant by virtue of his instrument of title was a party in Suit No.C/26/82 and submitted that the appellant as a lessee in the transaction involving the land in dispute was a party to the suit involving the said land as interpreted in ABUBAKAR v BEBEJI OIL & ALLIED PRODUCTS LTD & ORS. (2008) 15 WRN 13: (2007) 18 NWLR (Pt. 1066) 319. It was also submitted that unless the origin of the title is valid, the length of possession does not ripen an invalid title of a trespasser to a valid ownership of title. Also, a party who is holding an invalid title to land in dispute cannot hide under the defence of limitation of action to now use same as a legal robe to adorn the illegal title he is holding. Learned counsel argued that where a party is able to establish fraud in the transaction leading to the acquisition of a piece of land, it inhibits the application of the limitation law under consideration. Learned counsel stated that from the evidence before the lower court, it was apparent that the transaction between the appellant and Bassey Edet Ekong which put the appellant into possession of the disputed land is tainted with fraud.
The respondent’s reply is that the defence does not avail the appellant on account of fraud and concealment perpetrated by the respondent. This can be seen in the execution of the lease agreement with Alexander Edem Edet which was not registered until 2005 and the concealment of the appellant’s name until 2007 when the appellant instituted Suit No. HC/106/2007 seeking for an order of certiorari to quash the proceedings of the chief Magistrate court in Suit No. MCC/477/2006.
The submission of learned counsel for the respondent that the appellant by virtue of his instrument of title was a party to suit C/26/82 and consequently was also declared a trespasser in the judgment does not represent the correct position of the law. It is Exh. ’17’ that was affected by the judgment. By the judgment in Suit No. C/26/82, it was Bassey Edet Ekong who was declared a trespasser and consequently could not pass a valid title to Mrs. Inyang Effiong Ene, the lessee or to her son Mr. Amaku Effiong Ene, whose interest she also represented in Exhibit ’17, under the principle of law epitomised in the maxim ” Relief No. 3 which the Plaintiffs sought in Suit No. C/26/82 was –
“Cancellation of any purported Agreement of Sales or Lease made by a defendant concerning the land in dispute dating from 1976 to various of his purported tenants including that of Okon Udo Nsek of 109, Goldie Street, Calabar registered as Deed No. 65/65/61 dated 21/12/73.”
In his judgment at page 13 of Exh. “2” Koofrey CJ held thus:
“On the cancellation of the agreements,
I agree with the submission of the defence counsel that since the parties with whom the agreements were made, were not made parties in the suit, the agreements could not be cancelled. Cancellation of agreement made with Okon Udo Nsek could therefore not be made but all the tenants on the land including Mr. Nsek are to recognise the plaintiffs as their landladies.”
Relief No. 3 sought in Exh. ‘2’ appears rather restrictive. On the face of it, it did not affect interests which were acquired before 1976. Hence learned counsel for the appellant argued in his brief that “a simple and literal interpretation of both relief No. 3 in C/26/82 and the punitive award of Koofrey J (sic) as contained in page 143 paragraph 3 of the record is to the effect interests predating 1976 such as the defendant’s/appellants in this case were not affected by the suit ….”
I do appreciate the predicament of the plaintiffs in Suit C/26/82. Since they were not parties to Exh.’17’ they were not expected to know when the parties executed the lease agreement especially since it was not registered and therefore inadmissible.

I therefore hold that the lease agreement between Mr. Bassey Edet and Mrs. Inyang Effiong Ene for herself and representing Mr. Amaku Effiong Ene (Exh. ’17’) was not one of the reliefs sought in Suit No. C/26/82.
In case I am wrong in the conclusion I have just reached, since the lessee was not joined in the suit against the lessor in Exh. ’17’, the judgment in Exhibit ‘2’ could only affect the title the lessor purportedly passed to the lessee. By asking the tenants to the leases to recognise the plaintiffs as their landladies, the lessees became licencees on the property.

According to the learned authors Winfield and Jolowicz on Torts, 17th Edition by W. V. H. Rogers, par. 13 – 9 at page 627 –
“A person is not a trespasser if he is on land with the permission; express or implied, of the possessor.” See ROBSON v HALLET (1967) 2 Q.B. 939 at 950 – 951, per Lord Parker CJ.
The lessee would continue to enjoy the status of licencee until he disputes the landlord’s title to the land or alienates the whole or part of the piece of land let out to him without the landlord’s consent. Where this occurs the landlord will be entitled to an order of forfeiture and re-entry. See DOKUBO v BOB-MANUEAL (1902) 1 ALL NLR 113; TAIWO v AKINWUNMI (1975) 6 SC 143; ONYIA v. ONYIA (1981) 1 NSCC 319; SALAMI v OKE (1987) 4 NWLR (Pt. 03) 1 and ONWUGBUFOR v OKOYE (1996) 1 NWLR (Pt.423) 252.

According to the respondent, when Madam Inyang Amaku Ene, the mother of the appellant failed to comply with the order of the court that she should atone for the tenancy, Exh. ‘8’ dated 13th September, 1989 was sent to her by p. B. Etim on behalf of the Edem Effiong Edem Archibong Family Union and it reads:-
“EDEM EFFIONG EDEM ARCHIBONG FAMILY UNION
Secretariat
c/o 187 Goldie Street
Calabar.
13th Sept., 1989.
Madam Inyang Amaku
12 Mayne Avenue Extension
Calabar.
Sir/Madam,
ATTORNMENT OF TENANCY
Further to the Published Notice in the Nigerian Chronicle of Tuesday March 10, 1987, to inform you that on the 25th day of February, 1986, the High Court of Justice holden at Calabar in the matter of Civil Suit No.C/26/82 had unequivocally decreed inter alia:_
1) The descendants of the family of Edem Effiong Ita (deceased) of No. 119 Goldie Street, Calabar, are exclusively entitled to Declaration of Title sought over their family land properities lying along Goldie Street vicinity, Calabar, which is clearly delineated on the Survey Plan No. DAACO/CR/19/LD that had since been the subject of series of protracted land disputes from about 1968 in certain criminal and Civil proceedings terminating in the Civil Suit No.C/26/82 aforesaid between (1) Enwang Edem Effiong and (2) Atim Edem Effiong both of No.119 Goldie Street, Calabar versus Bassey Edet Ekong (alias AKAMBA-DE-BOY) of No.9 Adak Uko Street, Calabar.
2) All tenants on the said Edem Efiong Ita family land and Properties aforesaid are fully directed by the said court order to recognise forthwith the plaintiff herein as their lawful land ladies
As you are known to be in possession of a plot in the said family land through the said Bassey Edet Ekong (alias Akamba-De-Boy), I am directed to invite you to come and meet with the land ladies for the discussion.
You should, please note that the said Bassey Edet Ekong is not serious about appealing against the judgment otherwise he should have done so before now.
We hope that you will co-operate in this matter.
Yours faithfully,
SGD:
P. B. Etim,
For: EDEM EFFTONG EDEM ARGHIBONG
FAMILY UNION”
In his oral evidence, the respondent said he wrote the appellant’s mother and other tenants to come and atone title to the Plaintiff but she refused to do so while the other tenants went and atoned title to the plaintiffs. This must have informed the action in the chief Magistrate’s court, Calabar in suit No. MCC/477/06 for possession of the property situate at No. 12 Mayne Avenue Extension, Calabar. The proceedings were later set aside by the High Court in Suit No. HC/106/07 and this led to the institution of Suit No.HC/144/07 from which this appeal emanated.
The argument of the learned counsel for the appellant is to the effect that since the cause of action arose from the judgment in suit 2 and this concerns land, the action having been begun more than 10 years since the right accrued cannot be entertained. This is evident in the answer the plaintiff/Respondent gave when he was cross – examined in suit HC/144/2007 where he said:-
“The land in dispute here is No. 12 Mayne Avenue Extension, Calabar. Between 1996 and now is about 20 years.
I bring this action to enforce that judgment”
(underlining mine for emphasis)(See page 203 II 11-13 of the records).”

Section 13 (1) of the Limitation Law cap. L14 Laws of cross River state of Nigeria, 2004 limits the period for actions founded on judgments to 10 years. The section states as follows:-
’13 (1) Action shall not be brought upon any judgment or on the interest of any judgment debt after the expiration of ten years from the date on which the judgment becomes enforceable or the interest becomes due as the case may be.”
The Respondent wrote to the Appellant’s mother on 13th September, 1989, a period of three years after judgment in suit No.C/26/82 was given. Since it was obvious that neither the appellant’s mother nor the appellant himself was not ready to atone for the tenancy, the judgment became enforceable by an order of forfeiture or possession. Even as at the time the respondent applied to the chief Magistrate court to take possession of the property, he was already out of time in enforcing the judgment in suit No. C/26/82. And so when he instituted suit No.HC/144/2007,the action was not maintainable and the learned trial Judge should have upheld the preliminary objection that the action was statute barred and struck it out. See: TEXACO PANAMA INCORPORATION v SHELL PETROLEUM DEVELOPMENT CORPORATION OF NIGERIA LTD. (2002) 5 NWLR (Pt.759) 209; ELABANJO v. DAWODU (2006) 15 NWLR (Pt. 1001)76.

The fraud or concealment which learned counsel for the respondent alleged in the respondent’s brief was not made out in the evidence adduced.
I find that there is merit in the appeal and it is accordingly allowed. The judgment of the lower court in suit No.HC/144/2007 delivered on 28th October, 2009 is hereby set aside. I make an order striking out the suit as being statute barred. The appellant is entitled to costs assessed at N10,000.00 against the respondent.

JA’AFARU, MIKA’ILU, J.C.A.: Having read in draft the lead judgment of my learned brother Kumai Bayang Akaahs, JCA, I agree with it entirety. The judgment of the lower court is hereby set aside. The suit before the trial court is statute barred and therefore struck out. I award the same costs as in the lead judgment

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I had the privileged advantage of reading before now the judgment of my learned brother, K. B. Akaahs, JCA. My learned brother adequately covered the issues canvassed in this appeal. I agree with his reasoning and conclusion reached therein that the instant appeal is meritorious and should be allowed. I accordingly allow the appeal. I further abide by the consequential orders made therein and also endorse the order regarding costs in the said lead judgment.

Appearances

S. A. Mgbe with Kachi Moma, C. O. Egbe And O. O. NdifornFor Appellant

AND

A. A. Annah with F. E. DukeFor Respondent