NYAH & ORS v. UMOH (2021)

NYAH & ORS v. UMOH

(2021)LCN/15529(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/C/236/2020

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. ELDER AUGUSTINE OBOT NYAH 2. MR. ANIEKAN EDET OBOT 3. CHIEF GABRIEL USORO NYAH 4. EDIDIONG OBOT NYAH 5. MR. VICTOR MORGAN (For Themselves And On Behalf Of Obot Nyah Family) APPELANT(S)

And

CHIEF SUNDAY UMOH RESPONDENT(S)

 

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice Augustine Odokwo delivered on 4th day of June, 2020 in Suit No. HA/32/2016 from the consolidated Suits HA/32/2016 and HA/32/2014 decided by the Honourable Court.

The Appellant as Claimant in Suit No. HA/32/2016 claimed against the Respondent as follows:
1. A declaration that the area of land known as Ndon Obot was not part of the land granted to the Respondent in the Customary Court judgment of 1975 and affirmed by the Magistrate in 2013.
2. A declaration that the Respondent had encroached and trespassed beyond the area that was granted in the Customary Court judgment in 1975.
3. Injunction restraining the Respondent from going beyond the House of the original Defendant which was found to be a boundary neighbour to the disputed land but which was not on the disputed land.
4. Damages for encroachment and destruction of the family residences of the Appellants which did not form part of the land that was disputed in Exhibit 1.

​In the said Suit No. HA/32/2014, the Defendant/Respondent counter claimed as follows:
1. A declaration that the piece or parcel of land known as and called, EKPENE EDENG, which was the subject matter of Suit No. 222/75 decided by Abak District Court on 19th January, 1976, which land was the subject matter of Appeal Nos. MAB/2A/2008 and HA/1A/2014 is caught by the Doctrine of Res Judicata.
2. A declaration that the 1st Defendant is entitled to Statutory Right of Occupancy over the piece or parcel of land known as and called, Ekpene Edeng situate and lying in Ikot Oku Ubara village, Ediene Clan in Abak Local Government Area, and shown Survey Plan Nos. RIM/4955/LD and IUU/AK/1/2017/22/LD dated 1st March, 2017.
3. An Order of perpetual injunction restraining the Claimants, their siblings, agents, servants, workmen and cohorts from trespassing by way of erecting any structure, building, stores or alienating any part of 1st Defendant’s land to any person or body corporate or incorporate.
4. Mandatory Order, directing the Claimants, their agents, privies and servants to remove forthwith all traces of trespass on the land of 1st Defendant being subject matter of Suit No. 222/75.
5. The sum of N100,000,000.00 (One Hundred Million Naira) representing general damages for the destruction of the crops of the 1st Defendant on his land and trespass.

The brief facts of the case are as follows:
Udo Okon Noah (as Plaintiff) of Ikot Oku Ubara village in Abak Local Government Area, the Respondent’s predecessor in title had in 1975 sued Okon Obot Nyah of Ikot Obong Ediene village, the Appellant’s predecessor in title, for title to the large parcel of land known as “EKPENE EDENG” situate and lying in Ikot Oku Ubara village in Abak Local Government Area.

In the course of hearing this suit, Suit No. 222/75, in Abak District Court the Plaintiff, the predecessor in title to the Respondents, as the Plaintiff tendered his survey plan, which was used by the District during the inspection of the land.

The Defendant, Okon Obot Nyah, the predecessor to the Appellants in title, did not tender any survey plan but relied on the survey plan of the Plaintiff, before, during and after the inspection of the land.

​At the conclusion of the evidence, the District Court found for the Plaintiff and awarded title to Ekpene Edeng land to the Udo Okon Noah, the predecessor in title to the Respondent in 1976.

Later, the matter went from the Magistrate Court to Court of Appeal, Calabar Division, where the matter was remitted to the Magistrate Court, Abak for the hearing of the appeal.

By the time the case was remitted to the Magistrate Court, Abak, Okon Obot Nyah had died and was replaced by Edet Obot Nyah, the family head of the Appellants who prosecuted the appeal up till when Udo Okon Noah died in the year 2010 and he was replaced by Chief Sunday Umoh, the present Respondent as cousin and member of Udo Okon Noah’s family.

Edet Okon Nyah, the successor in title to the Appellant prosecuted Appeal No. MAB/2A/2008 till when judgment was delivered on the 25th June, 2013, whereby his appeal was dismissed. He thereafter filed an appeal to the High Court, Abak, in Appeal No. HA/1A/2014 his appeal was also dismissed.

​Parties filed and exchanged pleadings in the Court below. The Appellants/Claimants called four witnesses while the Respondent/Defendant called two witnesses.
The Appellants/Claimants tendered Exhibits 1 – 17, while the Respondent/Defendant tendered Exhibits 18 – 26.

The learned trial judge ruled that neither the doctrine of res judicata or issue estoppel applies to the case of the Appellant/Claimant.
On this, he reasoned at page 628 of the records first, that:
“I have critically looked at the parties in exhibit 1 and have compared same with the names of parties as they appear on the writ of summons filed in Suit Nos. HA/32/2014 and HA/32/2016 respectively and hold the view that although the original Plaintiff and Defendant were substituted, other parties in this case as consolidated were not made parties in Suit No. 222/75, the subject matter of exhibit 1 and as such this case is not caught by the doctrine of res judicata, I so hold.”
Also that:
“On issue estoppel, I have gone through the pleadings of the parties herein and the evidence adduced. I can see and confirm as a fact that the issue/issues decided upon by the Court in Suit No. 222/75 which was in respect of Ekpene Edeng or Ada Agwuk land and for which judgment was given is not in contest herein. Rather the contention of the Claimants is that the land called Ndon Obot Nyah sold to Dr. Marshal Eduoh is not part of the Ekpene Edeng land covered by exhibit 1. Therefore, it is my view that issue estoppel does not also apply in the instant case. I so hold.”

The learned trial judge further held that the land called Ndon Obot Nyah by the Claimants is the same land called Ekpene Edeng/Ada Agwuk by the Respondent. That even though the parties gave different names to the land in dispute, that it was the same land on which the judgment of the Customary Court exhibit 1 was based.

The learned trial judge however held that the Appellants/Claimants could not either through Exhibit 16 nor the evidence of PW4 – Appellants surveyor establish that the Respondent had encroached and trespassed beyond the area that was granted in the Customary Court judgment of 1975 – Exhibit 1.

Finally, the learned trial judge held that the Appellants/Claimants relied on traditional history for his root of title but did not prove same by pleadings and evidence.

At the conclusion of the hearing in Suit No. HA/32/2016, the trial Court found that the land called Ekpene Edeng, which was the subject matter in Suit No. 222/75 (Exhibit 1) is the same land that the Appellants now called “NDON OBOT NYAH”
Dissatisfied with this judgment, Appellant/Claimant filed a Notice of Appeal containing six (6) grounds of appeal in this Court on 28th July, 2020.

The relevant briefs of Argument for the appeal are as follows:
1. Appellants brief of Argument filed on 10th September, 2020. It is settled by Uyo-Obong Jumbo Udom, Esq.
2. Respondent’s brief of Argument filed on 2nd November, 2020. It is settled by Christiana A. Affiah, Esq.
3. Appellant’s Reply brief filed on 23rd November, 2020. It is settled by Uyo-Obong Jumbo Udom, Esq.

Learned counsel for the Appellants nominated five (5) issues for the determination of the appeal. They are:
1. Was the trial High Court right in its judgment to have ignored identifying the specific boundary features that separated the land of the original Plaintiff in Exhibit 1 from that of original Defendant therein, and the particular portion that was disputed, when that was the crucial issue presented by both parties for determination, but rather dwelt extensively on the technicality of traditional history, when that issue was exhaustively determined in Exhibit 1, was never made an issue by any of the parties, and when Appellants never sought for any relief for declaration of title to land? (Grounds 1 and 2).
2. Were Appellants not denied fair hearing when the Court below ignored and totally failed to make a single reference to all the legal submissions of Appellants’ counsel in the written address on the various issues and particularly all the extracted negative evidence surrounding Respondent’s Exhibit 2, the purported original disputed survey plan alleged to have been used by the District Court in Exhibit 1? (Ground 3).
3. Did the counter-claim of the Respondent meet the required standard of proof for grant of title to land when the name of the Respondent was never mentioned even once in Exhibit 1, as owning any portion of land within the disputed portion and was never mentioned even as a boundary neighbour in Exhibit 1? (Ground 4).
4. Was award of the sum of N1 million damages against the Appellants justified in law, when it was never shown that Appellants predecessor and the Appellants themselves ever crossed the established boundary of Eto Utere and the village path to erect any structure on the left or western side as evidenced in Exhibits 2, 6 and 16?
5. Given the evidence proffered by Appellants vis a vis the Respondent, was the trial Court’s judgment not against the weight of evidence adduced? (Ground 6).

Learned counsel for the Respondent on the other hand formulated seven (7) issues for determination of the appeal:
1) Whether the claims of the Claimants/Appellants had put the issue of title for determination before the trial Court.
2) Whether by the evidence of the Appellants before the trial Court, the Appellants had proved that the land in Exhibit 16 (survey plan tendered by the Appellants) is different from the land shown in Exhibits 1, 2 and 6.
3) Whether the address of Appellants counsel can be a substitute to proven evidence led before the trial Court.
4) Whether the evidence elicited in the course of cross examination which evidence is not backed by the Claimants/Appellants pleadings can be used to support the case of the Appellants.
5) Whether the Claimants/Appellants who sued the Respondent as Defendant in the trial Court from title, can now reneged as a person vested with the title to the land in dispute.
6) Whether the Respondent who was the counter-claimant before the trial Court, is entitled to the reliefs in the counter-claim.
7) Whether the trial Court did properly assessed the evidence put before the Court before arriving at its decision in this case.

On issue No. 1, learned counsel for the Appellants submitted that by Appellants relief 2, it can be seen that the main cause of action that instigated the Suit at the Court below was that Respondent went beyond the boundary of land that was disputed and awarded in Exhibit 1, the district Court judgment. That Relief 2 of the Appellants states:
‘A declaration that the Respondent had encroached and trespassed beyond the area that was granted in the Customary Court judgment in 1975.’

Appellants counsel submitted that by this relief 2, the trial Court was enjoined to find out what was the established boundary features that stood on the boundary between the land of the Appellants predecessor and that of the Respondent predecessor as was established in Exhibit 1, relied upon by both parties.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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He submitted that the crucial question that called for determination and ought to have agitated the mind of the trial Court, in view of Appellants pleadings and reliefs was, what portion of land did the original Plaintiff institute action on at the District Court and what exactly was awarded by the district Court in Exhibit 1?

He reasoned that the answer to this most critical question would be found on page 181 (5) of the record, lines 10 – 14 of Exhibit 1 where the question on this issue was put by the District Court and answered by the original Plaintiff; thus:
Question: How long since the Defendant encroached on this your land?
Answer: One year now.
Question: The area encroached upon by Lazarus and the old dwelling place of Eka Noah, which portion is in dispute?
Answer: The old dwelling place of Eka Noah.

On the above account, learned counsel for the Appellants submitted that, it was just a small portion or plot of land that was in dispute, at the district Court, not hectares as now claimed by Respondent.

​He submitted that the particular portion of land that was in dispute at the district Court was simply referred to as “the old dwelling place of Eka Noah” (place of old building of Plaintiff’s grandmother) which was just a minor part of Ekpenedeng land. Certainly that it was not the whole of Ekepenedeng land that was in dispute, nor awarded in Exhibit 1, as Respondent later claimed in his counter claim at paragraph 52 (d) at page 173 of the record.
He submitted that in the same Exhibit 1, at that same page 178 of the record, Plaintiff (Respondent) gave the names of various families from Ikot Oku Ubara who had compounds or plots on Ekpenedeng land that bounded with his disputed portion of land significantly that the original Plaintiff at page 178 of the record line 15 was very categorical that the land in dispute directly bounds with the land of Noah Umoh Etok (his father). Appellants counsel invited us to examine Exhibit 6 of the Respondent. That it can be seen that the house of Timothy Umo Etok and the stump of Eto Utere tree which original Plaintiff gave as boundary of his land and showed during land inspection are also found on that left or western side of the village path.

​The land inspection report captured in Exhibit 1 at page 209 of the record was very brief on features original Plaintiff showed on his land, at lines 9-15 thus:
“Plaintiff showed the Court around his land starting from Eto Utere, oil palm trees, and wine palm trees in line, he showed us a fence, graves of his relations and a pit dug to saw woods. We were showed coconut trees in the place his mother once had her house.
We were shown the house of Timothy, Plaintiff’s relation.
What we saw tallied with what was in the land plan.”

All these features he said had been reflected on Respondent’s exhibit 6 and they are all enclosed on the left hand side across the ancient village path which he now calls ‘Usung Ekpenedeng’ in Exhibit 6.

​He submitted that without any scintilla of doubt, that given the inspection report and the location of land or compound of Noah Umoh Etok, Plaintiff’s father, ‘the old dwelling place of Eka Noah’, that was what was disputed in Exhibit 1, was between ‘Etok Utere – compound of Noah Umoh Etok and house of Timothy Umoh Etok’, all enclosed within the left hand side. The disputed land stopped at the compound of Timothy Umoh Etok. It did not cross the ancient village path to the right or Eastern side, as there was no mention of the village path at all by original Plaintiff during land inspection.

He submitted that the old dwelling place of Eka Noah that was in dispute is well shown and indicated in Exhibit 16 tendered by the Appellants, even though it was not given that name. The area is what is verged blue.

Learned counsel for the Appellants further invited us to examine Exhibit 16 of the Appellants. He submitted that Appellants Surveyor PW4, in his witness deposition at paragraphs 13 and 14, page 410 of the record, had testified that after reading through Exhibit 1 and particularly the inspection report at page 209 (33) of the record, he was able to produce Exhibit 16 with a clear indication of the area he found to have been in dispute. That area is verged blue by PW4 in Exhibit 16. The area verged blue, just like in Exhibit 6, is on the left hand side of the ancient village path that separates the two villages.

That within the area verged blue are enclosed all the land features enumerated by the Plaintiff at page 209 of the record, exhibit 1, which includes; Eto Utere, graves and the house of Timothy Umoetok. Adjacent to the area verged blue on the left side is the compound/house of Udo Okon Noah (his late father’s compound) tomb stone of Timothy Essien, compound of Umo Etok, compound/house of Okon David Nkanga, all neighbours mention in Exhibit 1 at page 178 (2) of the record.

The only difference said counsel in the location of area of dispute between Exhibit 6 and Exhibit 16 is that the specific area that was in dispute at the district Court was verged blue in Exhibit 16, whereas the same and in exhibit 6 was never verged but left at large, although with same features. DW2 was asked if it was proper to verge a particular portion that was disputed on a dispute survey as was done in Exhibit 16 and he admitted it was proper to do so.

​Moreover, said counsel during cross examination, Appellant counsel read all the features highlighted by original Plaintiff at page 209 of the record exhibit 1, as bordering his land and to examine Exhibit 2, the purported dispute survey plan which Respondent had produced as what was allegedly tendered and used at the District Court in 1975. DW2 admitted that all these features were also on the same left hand side of the village path in Exhibit 2. He referred to page 614 of the record (cross examination by Mr. Udom).

Again, that DW2 was asked to compare the features in Exhibit 16 tendered by the Appellants and he admitted that the features were practically on same spot on the left hand side of the village path with both Exhibits 2 and 6.

In other words, according to counsel there was a consensus on all the dispute surveys before this Court, that the portion disputed at the District Court was a portion of land on the left hand side of the ancient village path and that the distinctive feature that divided the land of both parties was the stump of ‘Eto Utere’ tree and the village path which also divided the two villages of the parties.

He submitted that the trial Court however totally failed and neglected making this crucial finding which was most relevant to the ultimate resolution of the dispute that was presented by the parties. The only reference the trial Court made to this boundary features was simply to mention them in passing at page 635 of the record, when it stated, ‘I can see stump of Eto Utere Tree, I can see the village path, I can see this I can see that etc, without making any specific pronouncement or finding on the significance of the village path and the stump of Eto Utere tree as they related to the established boundaries between the parties.’

Learned counsel for the Appellant urged us to make that finding which is crucial to the resolution of the dispute giving rise to this appeal, whether Respondent had gone beyond the established boundary of the disputed land in Exhibit 1.

Also said counsel, the trial Court failed to make a finding on the particular portion of land that was disputed and awarded in Exhibit 1. That this was also very crucial to the resolution of the question presented by the Appellants that the Respondent left the area that was disputed to an area that was never in dispute as per Exhibit 1.

He submitted that the trial Court was hoodwinked and persuaded into calling all the land within the disputed area Ekpenedeng land and was never bothered to find out exactly what portion of Ekpenedeng land that was disputed in Exhibit 1. But as shown above, the specific portion that was disputed was identified as the ‘old dwelling place of Eka Noah’, and was on the left hand side of ‘Eto Utere’ tree stump and the village path.

He submitted that by the testimony of the original Plaintiff himself in Exhibit 1, Ekpenedeng land is a large expanse of land belonging to many families including the fathers of the Appellants. This very vital piece of evidence can be seen in Exhibit 1 at page 178 of the record where the various names of his boundary neighbours were listed by the Plaintiff himself as highlighted in our 4.12 above. It can be noted from the diverse surnames that the names were not homogenous or of one family, but reflects diverse families, irrespective of whoever founded the land.

​The trial Court, said counsel to the astonishment of the Appellants, erroneously deviated from the substance of the case when it failed to make a pronouncement on what portion was disputed and the established boundary features to rather dwell extensively on the issue of traditional history of who founded the land and the various names given the land by the parties. He urged us to find that given the reliefs sought by the Appellants, the issue of traditional history of the land was irrelevant to the crucial issue submitted by the parties which was simply, whether the Respondent had indeed crossed the established boundaries of the land that was disputed in Exhibit 1, to an area that was never in dispute thereon.

Moreover, in Exhibit 1 said counsel the issue of traditional history of the land was raised by the predecessors of the parties herein and settled by the District Court. This can be found in the many testimonies of the parties in Exhibit 1 at pages 205 to 206 and the District Court finding at page 210 lines 16 and 17 of the record.

​Learned counsel for the Appellants submitted that it is of vital importance to note that the trial at Court below was not an appeal or a challenge to the District Court judgment in Exhibit 1. Appellants accepted the decision in Exhibit 1 and relied on it and made it clear in their reply to statement of defence, at paragraphs 9, 10, 11, 18 and 19 page 391 of record that they were not challenging the decision of the District Court nor the Magistrate Court in the suit at Court below, but the encroachment of Respondent, crossing the village path and Eto Utere stump established boundary in Exhibit 1.

Accordingly, Appellants, said counsel, had accepted the traditional history established by Exhibit 1 and needed not recite a new traditional history when none of their reliefs was for a declaration of title to land. It was equally irrelevant whatever name the parties choose to call the disputed land, so far as the parties were ad idem as it were, on what was disputed. He referred to the case of ODIGBO VS. EZEMEGBU (2013) LPELR – 21254 (CA), where it was held thus:
“Indeed where parties by the evidence adduced both oral and documentary are ad idem on the identity of land in dispute, the fact that different names are given to the land or the area where the land is located is not fatal to the party claiming such land. He referred also to the case of OGBU VS. WOKOMA (2005) 14 NWLR (pt. 944) 118.”

​He submitted that both parties understood the case that was presented before the Court and that was why none of the parties made Appellants pleading on traditional history or lack of it, a part of their issues for determination. Respondent counsel never raised the issue at all as part of his issue for resolution and never made any passing reference to it in all of his submissions. Trial Court simply descended into the arena, raised the issue suo moto, and without giving any of the parties opportunity to address on the relevancy of traditional history where there was no claim for declaration of title by Appellants, proceeded to hold that Appellants failed to plead and lead evidence on one of the five methods of proof of title to land.

Learned counsel for the Appellants submitted that it had been held in plethora of authorities that where a Court raises a vital issue suo moto, which could affect the result of the case, it must give opportunity to the parties to first address on it before taking a decision.

Appellants urged us to set aside the decision of the trial Court raising issue of traditional history surreptitiously suo moto and resolving same negatively against the Appellants, even when same was irrelevant in view of the fact that none of the reliefs of the Appellants sought for declaration of title.

​He further urged us to hold that the Court below was in grave error to have deviated from the substance of the case, to have widen the dispute and to introduce what was not intended or disputed by the parties, and to have proceeded to reach a conclusion on a matter it raised suo moto without opportunity given the parties to address on it.

He referred to the cases of PAM & ORS. VS. A.B.U. & ORS. (2013) LPELR – 21406 (CA); UGBO & ANOR. VS. UGBO (2018) LPELR – 43783 (CA). He added relying on the cases of SANNI VS. ADEMILUYI (2003) 3 NWLR (pt. 807) 381; THE STATE VS. OLADIMEJI (2003) 14 NWLR (pt. 839) 57 that the Court should not make a case for a party different from the one he has made by his pleadings and the evidence.

He urged us to find as erroneous the pronouncement of the trial Court at page 627 thus:
“For a Claimant seeking a declaration of title to land, the burden is clearly on him to lead strong and positive evidence to establish his case for such declaration. Even an evasive averment such as the Defendant is not in the position to deny or admit … and will put the Claimant to the strictest proof thereof does not remove the burden on the Claimant.”

Again that at page 168, the trial Court held as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“The Claimants relied on traditional history as their root to title but could not prove same. Therefore, the act of possession further relied upon by them hereby fails following total lack of evidence to prove radical title for which acts of possession is incidental. In the final analysis, the case of the Claimants fails for want of cogent and credible evidence.”

He submitted that the above pronouncements of the trial Court are erroneous and not supported by the record before this Court. This he said is because Appellants never made declaration of title to land part of its reliefs nor did they rely on traditional history in their claims, as can be seen on page 7 of the record, the four reliefs of the Appellants in their claim were explicit, none sought for declaration of title to land. Appellants relied on exhibit 1, the district Court judgment and simply called on the trial Court to determine whether or not the Respondent, who also relied on the said exhibit 1 for his claim, had gone beyond the established boundary of the disputed land that was contested at the district Court in exhibit 1.

He reasoned that the trial Court either misunderstood the reliefs sought by Appellants or simply imported the relief for declaration of title, to enable it reach a predetermined position. This misconception of the reliefs sought led to grave injustice against the Appellants as the trial Court relied heavily on this technical point of lack of pleading on traditional history to dismiss the Appellants’ case without a consideration of the merits or substance of the dispute.

He submitted further that assuming pleadings on traditional history was relevant to the issue before the Court, (not conceded) Appellant’s pleadings were not totally void of such averments. Appellants had pleaded some facts of traditional history when they pleaded inheritances of their ancestral homes at paragraph 12 of their reply, on page 393 of record and had testified in paragraph 19 of 1st Appellant deposition on deforestation by their patriarch Okuku Nyah and traditional history of devolvement, page 402 of record.

​He submitted that the trial Court in granting judgment to the Respondent erroneously held that the land that was disputed in Exhibit 1, was the whole of Ekpenedeng land, which measures over 15 hectares, without taking into consideration that Ekpenedeng land was owned by diverse families as per Exhibit 1, thus putting the properties of those other families in risk, even when they were not privy to the suit at Court below.

He referred to the cases of WHITE DIAMONDS PROPERTY DEVELOPMENT CO. LTD. VS. TRADE WHEELS LTD. (2018) LPELR – 44572 (CA); N.E.P.A. VS. OSOSANYA (2004) 1 SC (pt. 1) 159; ATOLAGBE VS. SHORUN (1985) 4 SC (pt. 1) 250, (1985) 1 NWLR (pt. 2) 360 amongst other cases and urged us to resolve issue No.1 in favour of the Appellants as the decision of the trial Court on this issue was not supportable by the pleadings and evidence.

Learned counsel for the Respondent’s reaction to Appellants issue 1 would be seen in the treatment of Respondent’s issues 1 and 2. He started on issue 1 by reproducing Appellants/Claimants reliefs. He submitted that for the trial Court to give any definitive judgment based on Appellants claims, the Court must of necessity consider the claims of the Appellants particularly as it relate to claims 1, 2 and 3.

​He submitted that a suit for trespass to land coupled with injunction can only be maintained by the party who can show his title to the land. He referred to the cases of MOGAJI VS. CADBURY (NIG.) LTD. (1985) 2 NWLR (pt. 7) 393; ONWUKA VS. EDIALA (1989) 1 NWLR (pt. 96) 182; OYENEYIN VS. AKINKUGBE (2010) 4 NWLR (pt. 1184) 265 at 283.

He submitted that having put the issue of title on line, the Appellants could not resile now but to proof their case in accordance with standard set by the law as posited in the case of PIARO VS. TENALO (1976) 1 FNR 229.

He submitted that the Appellants in their attempt to prove their case by consent of both counsel tendered Exhibits 1, 2, 3, 4, 5, 6, 7 and Exhibit 16 (documents which relate to the land Appellants were claiming) and called four (4) witnesses of specific note, said counsel is Exhibits 6 and 16. That Exhibit 6 is the land in dispute called EKPENE EDENG, which was in dispute in Exhibit 1. Exhibit 16 is the survey plan of the Appellants showing the land in dispute.

Respondent’s counsel argued that in-spite of showing the correct land in dispute in Exhibit 16, the Appellant sought to re-locate the land in dispute which commenced from ETO UTERE along Abak – Uyo Road on the South Eastern side to Western side, which was not in dispute in 1975 as Exhibits 1 and 2 clearly showed.

Learned counsel for the Respondent noted that the District Court inspected the land in Exhibit 1, with the survey plan – Exhibit 2, which showed a large expanse of land in dispute. That the Appellants in their attempt to limit the land mass in Exhibits 1 and 2 said through PW1 that the land was “less than one acre”. Respondent’s counsel reasoned that two things are to be noted in the evidence of PW1.
1. That there is a land called NDON OBOT NYAH in the possession of the Appellants which was encroached upon by the Defendant/Respondent.
2. The land which is Ekpene Edeng which was disputed in Suit No. 222/75 is less than 1 acre.

Respondent’s counsel further noted that PW4, who tendered the Appellants Survey Plan Exhibit 16 witnessed thus:
“I have equally looked at the disputed Survey Plan No. RIM/4955/ LD i.e. Exhibit 2 and the marks and features that were identified by the Customary Court during land inspection and state that from the description of the features that were highlighted in the area of land in dispute, the total area of land could not have been more that 3,000 square metres.
Moreover, that I also measure the totality of land in RIM/4955/LD and that the land mass in the said plan was just about 7 hectares.”

That when PW4 was asked the numbers of square metres that make up one hectare, PW4 said that 10,000 square metres make up one hectare. He submitted that the land verged blue in Exhibit 16 is not Exhibit 1 and 2. But that the Appellants never pleaded nor gave evidence that the land in Exhibit 16 is different from that in Exhibits 1, 2, 6, 19 and 20. He added that it is trite that the first duty of a person claiming title to land or a claim for trespass is the ability to identify the boundaries of the land with grant certainties. And, that where this is not done, then the claim of the claimant fails.

​He submitted that aside the already laid down principle of law that title is brought to the fore front once issue of trespass and injunction is before the Court, the Appellants had copiously and impliedly in their pleading relied on traditional method of proving title to land. For example, that the Appellants had stated that the land that was sold to Dr. Marshall Eduo was part of the claimants ancestral land. Also, that the 1st Appellant in paragraph 26 of his witness deposition at page 404 of the records gave evidence that:
“…the Respondent herein used the fact that he got judgment on a portion of land called Ekpene Edeng to encroach and take over all of my inherited lands which never formed part of the disputed land contested at the Customary Court in 1975.”

He submitted that the Appellants placed reliance on traditional means of proving title to land but failed to discharge the burden of proof. By his issue 2, learned counsel for the Respondent insisted that the appellants had failed to proof that the land in Exhibit 16 is different from the land shown in Exhibits 1, 2, and 6. That the Appellants in trying to prove their case had come up with a survey plan, which radically changed the nature, features and size of the land in Exhibit 2.

​He repeated the trite legal position that the first duty of a person claiming title to land is to show with certainty the size and features of the land. That Exhibit 2 is the survey plan wherein the Customary Court had used in arriving at the judgment in respect of Ekpene Edeng land, which judgment was appealed up to the High Court and judgments were given in favour of the Respondent. Moreover, that the said judgments are still subsisting and have not been set aside.

Respondent’s counsel submitted that the Appellants in their entire pleading and evidence never led evidence as to the size of the land encroached upon or trespassed by the Respondent, but rather embarked on a voyage of diffusing the boundaries and size of the land shown in Exhibit 2 to suit their plan of claiming the land of the Respondent, thereby changing the name of the land from Ekpene Edeng to NDON OBOT NYAH.

Of note, said counsel is the fact that the Respondent had in his pleading and evidence, pleaded that the name of the land was for the first time changed from Adawuk or Ekpene Edeng to Ndon Obot Nyah in the year 1988 by the Appellants predecessor in title Edet Obot Nyah. This was not denied by the Appellants.

​Furthermore, said Respondent’s counsel the Appellants who in paragraph 21 of their statement of claim who had placed reliance on Exhibit 2 did not lead evidence in respect of the defined boundaries and as such the said pleading is deemed abandoned.

Relatedly, said counsel, the Appellants who had called the Court to consider Exhibit 2 cannot in turn accuse the Court on relying on Exhibit 2. The Appellants did not call any witness to give evidence in respect of land that was subject of award in Exhibit 1 neither did the Appellants show by Exhibit 16 the extent of land awarded to Respondent in Exhibit 1 and the size of the land allegedly encroached by the Respondent but rather showed by their Exhibit 16, the same land as Exhibits 2 and 6 but with different features.

The Appellants throughout their evidence never proved nor gave the area of calculation of the area of land disputed with the Respondents to not form part of Exhibits 1 and 2. In deciding Appellants issue 1, it is pertinent to make few salient observations.

​In the first place, learned counsel for the Appellants did not come to the conclusion dismissing Appellants case on the sole ground of failure of traditional evidence. Indeed, the first basis for the dismissal of the Appellants case is the failure to show precisely the area of land that the Defendant/Respondent trespassed on outside of Exhibits 1 and 2 as alleged by the Appellants. As rightly pointed out by the learned counsel for the Respondent, the Appellants who claimed to have accepted Exhibit 1 and pleaded reliance on Exhibit 2 did not in fact call any witness to give evidence in respect of the extent of land awarded to the Respondent in Exhibit 1 by virtue of Exhibit 2.

Even in Exhibit 16, the Appellants merely depicted the land in Exhibits 1 and 2 in the southern portion marked ‘blue’ and outside what they depicted to by their NDON OBOT NYAH land marked ‘red’ in the said Exhibit 16. The Appellants did not show the area of land allegedly trespassed upon by the Respondent outside Exhibits 1 and 2.

The burden on the Appellants to prove the exact area of land in dispute became more difficult with serious contradictions in the evidence of PW4 who spoke to the said Exhibit 16.

​In one breath at examination in chief, PW4 stated that:
“I have equally looked at the disputed survey plan No. RIM/4955/LD i.e. Exhibit 2, and the marks and features that were identified by the Customary Court during land inspection and from the description of the features that were highlighted in the area of land in dispute, total area of land could not have been more than 3,000 square metres. Moreover, that I also measure the totality of land in RIM/4955/LD and that the land mass in the said plan was just about 7 hectares.”

However, during cross examination, PW4 was asked the numbers of square metres that make up one hectare, and PW4 said 10,000 square metres.

​It is the law that a Plaintiff seeking declaration of title to land, has a duty to show clearly the area of land to which his claim relates, its exact boundaries and its extent as no Court would be obliged to grant a declaration to an unidentified land. In other words, before a Plaintiff in an action for declaration of title can get title, he is duty bound to show to the Court the area of land to which his claim relates. This is because before a declaration of title is granted, there must be credible evidence describing and identifying the land with certainty. The admission in evidence of a survey plan without objection is thus not sufficient to grant a declaration of title sought. See OGEDENGBE VS. BALOGUN (2007) 9 NWLR (pt. 1039) 380 SC; ADELUSOLA VS. AKINDE (2004) 12 NWLR (pt. 887) 295 SC; OKOCHI VS. ANIMKWOI (2003) 18 NWLR (pt. 851) 1 SC; OGUNDALU VS. MACJOB (2006) 7 NWLR (pt. 978) 148.
Indeed, the survey plan of such a Plaintiff must satisfactorily correspond with the land which he lays claim. See ONWUCHEKWA VS. EZOGU (2002) 18 NWLR (PT. 799) 333 SC.

In this important respect, the learned trial judge after referring to the Supreme Court cases of AIYEOLA VS. PEDRO (2014) LPELR – 22915 (SC); DAMINI & ANOR. VS. ABRAHAM & ORS. (2001) 16 NWLR (pt. 733) 20; (2001) 6 SC 154 and AROMIRE & ORS. VS. AWOYEMI (1972) 1 ALL NLR (pt. 1) 101 at 113 held first at pages 632 – 633 of the records that thus matching the features on exhibit 16 with the boundary names examined by me therein together with paragraph 46 of the 1st Defendant amended statement of defence particularly the features thereat, I can see and confirm for a fact that the boundary features reflected in paragraph 46 of the 1st Defendant’s amended statement of defence matches with some of the features on exhibit 16. In the circumstance, I hold the view that parties herein are in agreement on the identity of the land disputed although they may have ascribed different names to it. I will return to this point later in the judgment. For the claimants, the land in dispute as per Exhibit 1 is called Ada Awuk. See paragraph 6 of the statement of claim. Thus, however the different names ascribed to the land in dispute by parties, the land in dispute as per Exhibit 1 is located in Ikot Oku Ubara Ediene and is known to be the parties except for boundary differentials as to the area of land granted the Defendant by the Court in Suit No. 222/75. (See exhibits 1 and 2). Regarding the area of the land disputed, none of the parties pleaded facts that touch on the area of the land disputed in figures. They were contented in only describing the boundaries of the disputed land whereas the bone of contention is that the Defendants went beyond the area of land awarded to them in exhibits 1 and 2 respectively. That is to say, the judgment of the Customary Court and the land in dispute survey plan used by the Customary Court in the said judgment. Even exhibit 16 did not capture area calculation of the land in dispute in order to assist the Court to determine the total area of the land in dispute allegedly trespassed into by the Defendants, although this is what the Claimants were expected to have pleaded and proof to earn judgment. However, the PW4 in paragraph 9 of his deposition adduced evidence which I feel necessary to produce here for emphasis.

He continued, and concluded the portion on page 633 of records thus:
I have equally looked at the dispute Survey Plan No. RIM/4955/LD and the land marks and features that were identified by the Customary Court during land inspection and state that from the description of the features that were highlighted in the area of land in dispute, the total area of land could not have been more than 3,000 square metres. Moreover, that I also measure the totality of land in RIM/4955/LD and found that the total land mass in the said plan was just about 7 hectares.

This evidence by the PW2 which gives the only clue as to what may be the area of the land in exhibit 2 is unfortunately not supported by pleadings accordingly, same goes to no issue.

​Be that as it may, assuming paragraph 9 of the deposition filed by PW2 captured above were supported on pleadings, it could be seen that the area calculation of the land given by PW2 to be 3,000 square metres is only in respect of features on the land called Ekpene Edeng as per Exhibit 1 whereas PW2 was in my view, expected to give the area of the land disputed by the Claimants (that is Ndon Obot as pleaded by them) or at best, plead and prove the entire area of the land of the Claimants encroached upon by the 1st Defendant. These Claimants have failed to do.

The other important aspect of Appellants Issue 1 is the insistence by the learned counsel for the Appellants that they approached the Court below for the interpretation of the judgment in Exhibit 1 and that the trial Court surreptitiously brought in the need to plead and give evidence of their root of title. Appellants counsel added that the Appellants were not even called upon by the Court on the matter of traditional evidence which according to him was suo motu raised by the trial Court.

​Suffice to say that I do not agree with the view of the learned counsel for the Appellants that from their reliefs, the Appellants did not seek declaration of title but interpretation of the judgment in Exhibit 1. In the first place, and as pointed out by the learned counsel for the Respondent, where claim for trespass to land is coupled with a claim for injunction as in the instant case, the title to land is automatically put in issue. See OYENEYIN VS. AKINKUGBE (2010) 4 NWLR (pt. 1184) 265 @ 283; ONWUKA VS. EDIALA (1989) 1 NWLR (Pt. 96) 182. Secondly, in practical terms, one wonders how the Appellants in this case could shy away from proof of title, when they claimed:
(a) Declaration that the area known as Ndon Obot was not part of the land granted to the Respondent in 1975.
(b) Declaration that the Respondent had encroached and trespassed beyond the area that was granted… in 1975.
(c) Injunction.

The reliefs of the Appellants are coined in negative terms, but I think by these reliefs, it is the Appellants that are surreptitiously claiming declaration of title to the land which they now named Ndon Obot or Ndon Obot Nyah and not the trial Court that has “surreptitiously” insisted on proof of title to land.

In all the circumstances, the learned trial judge was right to have held that the Appellants needed to prove their root of title and also that their only plausible root of title from pleadings and evidence, that is traditional history was not successfully proved.

Indeed, in pleading traditional history in a claim for declaration of title, the plaintiff is expected to narrate the genealogical tree from the original owner, the ancestor, in generations appurtenant to him, down the line to the plaintiff. In other words, he must prove who founded the land, in what manner the land was founded and the circumstances leading to it; and the successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained. See ODI VS. IYALA (2004) 8 NWLR (Pt. 875) 283 SC; EZINWA VS. AGU (2004) 3 NWLR (Pt. 861) 431; EWO VS. ANI (2004) 3 NWLR (Pt. 861) 610 SC; IRAWO VS. ADEDOKUN (2005) 1 NWLR (pt. 906) 199.

In the instant case, the Appellants pleadings and evidence did not meet the standard required by law as pleadings and evidence of traditional history. The learned trial judge said as much when he held at pages 639-640 of the Records that:
Thus, going by the averment of the claimants, there is no denying the fact that the method of proof of title relied upon by the claimants herein is that of traditional history. That being the case, it is beyond peradventure that a plaintiff who relies on traditional history in proof of title to land must comply with the holding of the Court in OKOLI & ORS. VS. NWANNE & ORS. (2013) LPELR-22895 (CA) thus:
… Since the Appellants also pleaded traditional history or evidence, it was incumbent upon them to narrate their historical antecedents particularly their genealogical pedigree from the original ancestral owner through the successive generations on whom the land eventually devolved until it came into their possession. In other words, the Appellants must plead and prove who founded the land, the manner the land was founded and the circumstances leading to it; and the successive persons to whom thereafter the land devolved through an unbroken chain or in such a way that there is no gap which cannot be explained. See ODI VS. IYALA (2004) 8 NWLR (pt. 875) 283 SC; EWO VS. ANI (2004) 3 NWLR (Pt. 861) 610 SC, IRAWO VS. ADEDOKUN (2005) NWLR (Pt. 906) 199 and EZINWA VS. AGU (2004) 3 NWLR (Pt. 861) 610 CA per Agube, JCA (P. 48 paras B-F)

Still on page 640 of the Records, the learned trial judge further held:
… the claimants never pleaded such facts neither did they lead any evidence on who founded the land disputed. It is not the place of this Court to venture into speculation for the claimants to discover who founded the land. This Court can only be called upon to decide cases brought before it by disputants by material facts and evidence and not to speculate – see UNITY BANK PLC. VS. RAYBAM ENGINEERING LTD. (2017) LPELR – 41622 (CA).

For the above reasons, Issue No. 1 is resolved against the Appellants.

On Issue 2, learned counsel for the Appellants submitted that the Appellants were denied fair hearing in the circumstance of this case, where trial Court totally ignored the legal submissions of Appellants counsel in their written address and did not make a single reference to any of the submissions on any of the issues, preferring to adopt only the issues and submissions of Respondents, pointing clearly to bias, partiality and a predetermined position.

He added that no matter how trivial or irrelevant a submission of counsel may appear, the trial judge has a duty to examine it and rule upon it; failure of which amounts to a denial of fair hearing which renders any judgment liable to be set aside. He referred to the cases of UKPONG VS. ESOPNDEM & ORS. (2013) LPELR – 21948 (CA); ODUNUKWE VS. OFOMATA & ANOR. (2010) LPELR – 2250 (SC); WILSON VS. OSHIN (2000) FWLR (Pt. 14) pg. 2311 @ 2329; OGBUESHI VS. WILSON OGBOMAH (2016) 11 NWLR (pt. 1522) 59 @ 81.

Appellants counsel referred to Exhibit 2 as a public document which was not certified and also that there was nothing to authenticate the genuineness of Exhibit 2.

Learned counsel for the Appellants submitted that apart from the above irredeemable flaws that plagued Exhibit 2, Appellants had equally listed other noted flaws that should have restrained trial Court from placing any probative value on Exhibit 2 as what was purportedly tendered at the District Court and reflected in Exhibit 1. He listed them as follows:
(i) Throughout the proceedings in Exhibit 1, as can be seen in the title of the suit, original plaintiff was consistent with his three names as, “Udo Okon Noah”. But the name in Exhibit 2 was given as 5 names thus: “Udo Okon Noah Umoh Etuk”. Obviously to accommodate Respondent’s new interest on the land so that the two surnames can synchronize.
(ii) On the top right hand of Exhibit 2 was found the feature termed, “1975 – mixed farming by Sunday Akpan Umoh”. As submitted earlier, throughout Exhibit 1, the name of Sunday Akpan Umoh was never mentioned at all, either as co-plaintiff, as boundary neighbour or as witness.
(iii) Also no farm of plaintiff brother was mentioned as now indicated on the left side of Exhibit 2. It leaves to wonderment why such a brother that had farm within the disputed land was not at Court below to protect his interest, when his brother became deceased and his alleged farm, in contention.
(iv) The only road that bounded with the land that was disputed was simply referred to as village path or ancient path. But in Exhibit 2, produced by Respondent, that road was now referred to as “Usung Ekpenedeng”.
(v) The land of Nathaniel Anyiema and Udo Aniema original plaintiff had testified were his direct boundary neighbours were mischievously moved and located on the extreme end of Ikot Obong Ediene and totally cut off from the land that was in dispute in Exhibit 1.
(vi) Exhibit 2 did not have any figures or coordinates to allow for easy calculation of area of land enclose, showing that it was hurriedly fabricated, after Respondent found that the judgment of Magistrate Court in Exhibit 19, was purportedly in his favour.

However, said counsel, despite pointing out all above debilitating evidence against Exhibit 2 in Appellants written address, the trial Court chose to clothe Exhibit 2 with toga of legality when it held at page 634 of the record thus: “…Exhibit 2 is the certified true copy of the plan of land in dispute drawn by Surveyor R. F. Uko and dated 12th November, 1975….”
And, further held at page 636 of the record:
Exhibit 2, the original dispute plan which has not been set aside till date…………

On this account, Appellants counsel referred to the case of BARRISTER EDIRU VS. F.R.S.C. (2016) 4 NWLR (Pt. 1502) 209 @ 240, and urged that Issue 2 be resolved in the Appellants favour as they were denied fair hearing.

Learned counsel for the Respondent attended to Appellants Issue 2 in his treatment of Issue 3 even though he chose to argue Issues 3 and 4 together. In specific response to Issue 2, learned counsel for the Respondent submitted that address of counsel, no matter how beautifully drafted and scripted cannot take the place of evidence. He referred to the case of FEDERAL HOUSING AUTHORITY VS. KALEJAIYE (2010) 19 NWLR (pt. 1226) 147 (SC) (2010) LPELR – 1267 (SC) 1 @ 27. He submitted that Appellants counsel, in a bid to cover up tracks where they had failed to prove their case, embarked on a journey of using address to fill in the gaps of evidence which were neither pleaded nor relied upon at trial. He submitted that facts not pleaded goes to no issue and evidence not supported by pleadings cannot be sustained.

It is interesting to note that the Appellants complaints of “debilitating evidence against Exhibit 2” and lack of reference to Appellants submissions “pointing clearly to bias, partiality and a predetermined position” were all in respect of submissions and observations in the written address of the Appellants and not matters directly arising from pleadings and evidence at trial.

I do not share the view of the learned counsel for the Appellants that any or all of the complaints in Issue 2 lead to lack of fair hearing. In the case of BARRISTER EDIRU VS. F.R.S.C. (2016) 4 NWLR (pt. 1502) 209 @ 240 cited on page 20 of the Appellants brief of Argument, Ogbuinya JCA said inter alia that “the whole essence of fair hearing which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or otherwise, the opportunity to present their case. It follows that fair hearing is divorced from correctness of a decision…”
Furthermore, in the case of FEDERAL HOUSING AUTHORITY & 1 OR. VS. A. A. KALEJAIYE (2010) 9 NWLR (pt. 1226) 147 @ 170, the Supreme Court per Onnoghen JSC pointed out that the role of the Court in adjudication is to maintain a level playing field for the parties by offering them equal opportunity to represent their case or grievances, if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his counsel to utilize same in accordance, with the rules of procedure and substantive law. Where, however, he or his counsel fails or neglects to utilize the opportunity so offered, he cannot turn round to blame the Court for the loss of the opportunity as the Court will not allow a party to hold the opponent or the Court to ransom under the guise of the desire to protect the principles of fair hearing. The right to fair hearing remains the right to opportunity to be heard on any matter affecting one’s right. Once that opportunity is offered, the duty of the Court ends there.
In the instant case, the complaints of the Appellants on Issue 2 relates to correctness of decision and not to lack of fair hearing. Issue 2 is resolved against the Appellants.

​On Issue 3, learned counsel for the Appellants complained that the Respondent in this case was not the plaintiff at the District Court in Exhibit 1. That the only contact Respondent had with the disputed land is that when the original plaintiff died in 2010, plaintiff applied to be joined in the appeal that was ongoing at the Magistrate Court. There was no evidence that the plaintiff consulted with the adult three sons of the original plaintiff, who ought to be the rightful inheritors of their father’s land if the land encroached by Respondent was that of their father.

He submitted that merely applying to be joined as a party to an existing appeal, does not entitle a party to the estate of an intestate estate, or to a declaration of title to land in the case of success of the appeal, more so where the deceased had surviving male children. The response of the learned counsel to Respondent to Appellants Issue 3 would be found in the Respondent’s treatment of Issues No. 4 and 5.

The Respondent submitted that the Appellants surreptitiously, at the address stage had introduced the issue of the Respondent not being the appropriate person to have been sued, forgetting that they had instituted the action against the Respondent. He referred to the provision of Order 13 Rule 36 (1) of the High Court (Civil Procedure) Rules, 2009 and submitted that in land matters, the cause of action subsists even after the death of any party prosecuting the case.

​He submitted that there was evidence in Court that upon the demise of Udo Okon Noah and Okon Obot Nyah, both being original plaintiff and Defendant in Exhibit 1, substitution was made in respect of Edet Obot Nyah being Appellant (of the claimants family) and Respondent in respect of Umo Etok Adiaha family being Respondent, that the Appeal from Exhibit 1 was properly entered and prosecuted and the appeal consequently produced Exhibit 19 and 20 respectively.

He noted that nobody from Respondent family had ever challenged the representations of the Respondent, including Edet Obot Nyah – the Appellant both at the Magistrate Court and in the High Court including the sons of the Udo Okon Noah who are aware that their interest is adequately protected by the Respondent’s representation as their Family Head/Village Head.

Furthermore, said Respondent’s counsel, the Claimants Appellants never pleaded facts nor led evidence on the issue now being canvassed on appeal. He repeated that the Claimants/Appellants constituted this case and knew exactly who they wanted to sue.

​Learned counsel for the Respondent still on Appellants Issue 3, referred in his Issue No. 5 to paragraphs 6, 10, 12, and 15 of the evidence of the 1st Appellant on pages 11 and 12 of records. He submitted that it is crystal clear that the Appellants knew very well that the Respondent is entitled to the reliefs as was granted by the trial Court and the Appellants cannot approbate and reprobate at the same time concerning an issue that was not even pleaded before the Court below.

Appellants Issue No. 3 is based on ground 4 of the Appellants Notice and Grounds of Appeal, it technically challenged the locus standi of the Respondent to institute the counter-claim against their own claims against him as Respondent.

In the first place, this matter was not raised in the Court below and there was no decision on same. It must be noted that an appeal is generally regarded as a continuation of an original suit rather than as an inception of a new action. An appeal should be a complaint against the decision of a trial Court. Thus, in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See NDIC VS. S.B.N. PLC. (2003) 1 NWLR (pt. 801) 311; OREDOYIN VS. AROWOLO (1989) 4 NWLR (pt. 114) 172 SC; BABALOLA VS. STATE (1989) 4 NWLR (Pt. 115) 264 SC.; JUMBO VS. BRYANKO INT. LTD. (1995) 6 NWLR (pt. 403) 545 @ 547; NGIGE VS. OBI (2006) 14 NWLR (pt. 999) 1.

Secondly, the Respondent in the instant case as admitted by the Appellants was legally and recognisably substituted for the original plaintiff in Exhibit 1 by Court orders. There is no question that the Respondent counter claimant has sufficient interest to be protected in the action. Indeed, locus standi or standing is the legal right of a party in an action to be heard in litigation before a Court of law or tribunal. A person is said to have locus standi if he has shown sufficient interest in the action and that his civil rights and obligations have been or are in danger of being infringed. See INAKOJU VS. ADELEKE (2007) 4 NWLR (pt. 1025) 423 SC; AKANNI VS. ODEJIDE (2004) 9 NWLR (pt. 879) 575; OLAGUNJU VS. YAHAYA (1998) 3 NWLR (pt. 542) 501; OKAFOR VS. ASOH (1999) 3 NWLR (pt. 593) 35; GUDA VS. KITTA (1999) 12 NWLR (pt. 629) 21.

​Having being substituted in the course of previous proceedings after the judgment in Exhibit 1 by the Courts, the Respondent counter-claimant has sufficient interest to prosecute the counter claim for the original plaintiff in Exhibit 1.
Issue No. 3 is resolved against the Appellants.

On Issue No. 4, learned counsel for the Appellants submitted that the award of the sum of N1 Million against the Appellants was most oppressive and unjustified in law. He submitted that there was no evidence before the Court that the original Defendant – Okon Obot Nyah, predecessor of the Appellants, nor the Appellants themselves ever crossed the established boundary between the parties.
He urged that the award be set aside.

There is no fixed rule by which to assess general damages. It is at the discretion of the Courts. The term “general damages” covers all issues which are not capable of exact quantification. In recent times, the Courts have taken into consideration the level of inflation in the award of general damages.

In the circumstance, I do not think the award of N1 Million was/is excessive in all the circumstances of the case. Issue No. 4 is resolved against the Appellants.

​On Issue 5, learned counsel for the Appellants submitted that at two instances during cross examination, the Respondent expressly admitted before the trial Court that the village path or old deceased road was what divided the two villages of the Appellants and the Respondent. And, that the Ekpenedeng land of the Respondent was on the left side of the village road while the land of the Appellants fathers was on the right hand side. He referred to page 611 of the records.

He submitted that the disputed land owned by the original plaintiff in Exhibit 1 had a common boundary with land of original Defendant in Exhibit 1. That despite admission by the Respondent of such a vital fact, the Court below still went ahead to dismiss the case of the Appellants.

The question now, said counsel, is where is the land of the father of the original defendant, Okon Obot Nyah, reflected on Respondent’s Exhibit 6, that both the plaintiff and all his witnesses testified was a direct boundary neighbour to the disputed land of Udo Okon Noah his predecessor?

​The Respondent, said counsel is challenged to demonstrate through evidence on Exhibit 1 how the disputed land at the District Court moved from the boundary of Eto Utere tree to the right hand or East ward. He submitted that by Exhibit 1, the disputed land was strictly limited to the Western side of Eto Utere tree stump and the village path which is the boundary of the two villages. Consequently, the trial Court ought to have found that the whole encroachment on the right hand side of Eto Utere tree and the village path, as reflected on both Exhibits 6 and 16 constitutes trespass by the Respondent and that the trespass was quite massive, over 15 hectares (300 plots) as shown in Exhibit 6.

The counter claim of the Respondent, said counsel was devoid of the required standard of proof for declaration of title as Exhibit 1 exclusively relied upon by the Respondent was in respect of a small specific portion of Ekpenedeng land, called “the old dwelling place of Eka Noah” and not the 15 hectares of land claimed by the Respondent.

​The Respondent attended to Appellants Issue 5 in his Issues 6 and 7. He submitted that in proving his case, the Respondent had pleaded to the effect that he is claiming no other land other than the one contained in Exhibit 1 and Exhibit 2. That the Respondent further proved that the land was no other than the land of the Respondent which he obtained judgment in his favour in Exhibits 1, 19 and 20 which said judgments are still alive and have not been set aside.

The Respondent had in his paragraph 15 of his pleadings (at page 153 of record) stated that the Appellants predecessor in title had only surreptitiously changed the name of the land from Adawuk to Ndon Obot Nyah in the year 1988 to suit their plan of re-litigating over the land in dispute despite the success of the appeals. He referred us to pages 631, 634, 637, 638, 640, 641, 646, 647, 648, and 650 of the record to conclude that the trial Court carefully examined Exhibit 2 which is a document that gave birth to Exhibit 1 and matched same with Exhibits 6 and 16 in awarding the Respondent’s counter claims.

In deciding Appellants Issue 5, I rely and adopt my resolutions on Issues 1, 2, 3 and 4 as applicable to my decision on Issue 5.

​Now, it seems to me that what has happened in this case is that the Appellants introduced new reliefs to re-litigate the decision of the District Court in Exhibit 1 of which Exhibit 2; the survey plan of the original plaintiff in the suit in the District Court was the basis. The Appellants appeal on Exhibit 1 to the Magistrate Court and then to the High Court was dismissed.

Whatever the area the Appellants now allege was in dispute in Exhibit 1, the District Court awarded the entire area of land called Ekpene Edeng land to the predecessors of the Respondent in Exhibit 1 by virtue of Exhibit 2.

In the instant case, the Respondent still relied on the same Exhibit 1 and Exhibit 2 to lay claim to his Ekpene Edeng land as against Appellants Exhibit 16 for which Appellants were granted leave of Court to produce for the purpose of the suit in the Court below.

However, the Appellants themselves necessarily placed reliance on Exhibits 1 and 2 as their claims were based on the fact that the Respondent exceeded the portion of land granted to him in Exhibit 1.
The judgment of the trial Court was not against the weight of evidence. Appellants Issue 5 fails and it is resolved against the Appellants.

The Appellants in this appeal nominated five (5) issues for determination of the appeal. The five (5) issues are resolved against the Appellants.
In consequence, the appeal lacks merit and it is accordingly dismissed.
N100,000.00 costs is awarded to the Respondent.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother, Mojeed Adekunle Owoade, JCA. He has dealt exhaustively with the issues for determination.
For the reasons contained in the judgment, I too dismiss the appeal.
I abide by all other orders in the lead judgment including the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Mojeed A. Owoade, JCA.
My learned brother has carefully examined and concluded on the five issues submitted for determination in this appeal.
I agree with his reasoning and the conclusion reached in the judgment.
I also dismiss the appeal and abide with the order as to costs.

Appearances:

Uyo-obong Jumbo Udom, Esq. For Appellant(s)

Christiana A. Affiah, Esq. For Respondent(s)