OGBONGHA v. IWARA & ORS (2020)

OGBONGHA v. IWARA & ORS

(2020)LCN/15450(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, November 05, 2020

CA/C/277/2014

RATIO

LAND: POSSESSION: A PERSON IN POSSESSION EVEN WITHOUT A VALID TITLE OR WITH A DEFECTIVE TITLE CAN SUE IN TRESPASS

A person who is able to prove exclusive possession of a piece of land can maintain an action in trespass against any person, unless such a person can prove a better title to the land. In essence, a person in possession even without a valid title or with a defective title can sue in trespass. See OWHONDA V. EKPECHI (2003)17 NWLR (prt 849) 326. In OTUTU V. EMEWU (supra), it was held that clam for trespass is not dependent on the declaration of title as the issues to be determine in a claim for trespass are whether the plaintiff has established his actual possession of the land and the defendant’s trespass on it which are quite separate independent issues, to that in a claim for declaration of title. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

CAUSE OF ACTION: MATERIALS TO BE CONSIDERED TO ASCERTAIN A CAUSE OF ACTION

GROUND OF APPEAL: WHETHER ISSUES FOR DETERMINATION MUST STEM FROM THE GROUNDS OF APPEAL

Issues for determination must flow from or related to the ground of appeal and proliferation of issues should be avoided. In other words, the grounds of appeal should in no circumstances be less than the issue for determination. While the Court may tolerate equal number of grounds and issues, a situation where there are less grounds of appeal than issues for determination cannot be tolerated. See AGU V. IKEWIBE (1991) 3 NWLR (prt 180) 385. Where issues for determination not related to or based on grounds of appeal are not only incompetent but completely valueless and must be ignored by the appellate Court. See OMO V. JSC, DELTA STATE (2000) 7 SC (prt 11)1. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

IKPI IWARA OGBONGHA APPELANT(S)

And

MRS. OKAMA EMMANUEL IWARA (NEE OKAMA OBONO) 2. MADAM OKWO OBONO 3. MADAM FELICIA OBONO 4. MADAM ENIANG OBONO 5. MADAM MARY OBONO 6. MADAM NNANKE OBONO RESPONDENT(S)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross River State sitting at Ugep Judicial Division delivered on the 8th April, 2014. The appellant as claimant before the lower Court took out a writ of summons and statement of claim respectively filed on 15/11/2012 claiming against the 1st respondent herein as follows:-
(a) A Declaration that the claimant is entitled to the statutory right of occupancy of the plot of land and property lying and situate at No.16 Ikpakapit Street, Ugep.
(b) An Order of perpetual injunction against and restraining the defendant, her assigns, cohorts, agents, privies, cronies and or legal representatives from entering, tampering, dealing and or otherwise alienating the said land and or property of the claimant within the jurisdiction of this honourable Court.
(c) Trespass to land and property of the claimant by the defendant.
(d) Special damages of the sum of Two Million Naira (N2,000,000.00) against the defendant.
(e) General damages of the sum of Four Million Naira (N4,000,000.00) against the defendant.

Upon been served with the above processes, the defendant denied the claim and counter-claimed against the claimant as follows:-
(a) A declaration that the counter-claimants are entitled to the right of occupancy over the landed property situate and known as No.16 Ikpakapit Street/Biko-Biko Street, Ugep, Yakurr L.G.A, bounded by Iwara Obong’s land Otu Ubi’s land and Ikpakapit and Biko-Biko Streets.
(b) An Order ejecting the defendant, his brothers, sisters, privies, agents, tenants, servants, hirelings, cohorts, cronies or assigns from the said landed property or any part thereof.
(c) Perpetual injunction restraining the defendant either by himself, his privies, agents, servants, hirelings, cohorts, cronies or assigns from entering, interfering, trespassing or further entering, interfering or trespassing into the said property.
(d) N5,500,000.00 damages for trespass made up N500,000.00 special damages for the psychological trauma caused the counter-claimants by the defendant’s use of the Town Planning officer and sisters to intimidate and harass them, and N5,000,000.00 general damages.

Pleadings were settled and exchanged; the matter proceeded to trial Court where parties led oral and documentary evidence. At the end of the trial, counsel for the respective parties addressed the Court. In a reserved and considered judgment delivered on 8/4/2014, learned trial judge dismissed the claims but granted the counter-claims at pages 223-224 of the record of appeal as follows:-
“The claims of the claimant failed on his pleadings although I went on to consider the evidence he offered which did not also help him and is hereby dismissed in their entirely with N25,000.00 cost to the defendant.
Now to the counter-claims, I have reproduced the pleadings of the counter-claimant above stating how the counter-claimant got the land. The counter claimant led evidence in support of those pleadings particularly evidence of DW2. In the absence of evidence of ownership of the land by any other person, I hereby enter judgment on the counter claim for the counter claimant as follows:-
1. I hereby declare that the counter claimant is entitled to a deemed right of occupancy over the landed property known as N016 Ikpakapit Street/Biko-Biko Street, Ugep, bounded by Iwara Obong’s land, Out Ubi’s land and Ikpakapit and Biko-Biko Street in Ugep.
2. I hereby order the ejection of the defendant his brothers, sisters, privies, agents, tenants, servants, hirelings, cohorts, cronies or assigns therefrom.
3. I hereby restrain the defendant by himself his privies, agents, servants, hirelings, cohorts, or assigns from the said property.
4. By the claimants claim in this case the claimant has admitted that he has challenged the defendant’s little to the property in dispute here. He has admitted to approaching the Town planning officer to disturb the defendant/counter claimant building project on the land. He has continued occupation of the property despite the filing of this counter claim since last year without the claimant pleading any colour of right to the land howsoever. In the circumstances of this case those were all acts of trespass. For the trespass, I award the sum of N500,000.00 to the counter claimant. I assess and award cost of this counter claim at N25,000.00 in favour of the counter claimant.”

Also delivered along with the above judgment was a ruling in respect of a motion filed by the claimant contending that the counter-claim was statute barred. The cause of action according to the learned trial judge accrued in 2011 while the suit giving rise to this appeal was filed in 2012. Thus, it was not statute barred and the objection was dismissed with N20,000.00 cost against the objector.

Dissatisfied with both the above ruling and judgment, appellant appealed to this Court through a notice of appeal filed on 22/4/2014. The said notice of appeal contains three grounds of appeal at pages 225 – 226 of the record of appeal.

Distilled from the said three grounds of appeal, learned counsel for the appellant, Chief Cletus Okoi Esq. formulated six issues for the determination of this appeal as follows:-
1. Whether the defendant is not estopped by failure to raise appellant’s right to bring an action for statutory declaration of title in limine?
2. Whether learned trial judge erred in law by holding that the counter claim is not incompetent?
3. Whether the learned trial judge erred in law by holding that the counter-claim is not statute barred?
4. Whether the counter-claimant/defendant can derogate from her grant of land.
5. Whether the learned trial judge showed likelihood of bias against the claimant in the trial of this suit.
6. Whether the judgment delivered by the learned trial judge on 8th April 2014 is against the weight of evidence, perverse and leads to miscarriage of justice.

K. U. Ejukwa, Esq. on behalf of the respondents formulated three issues for the determination of this appeal thus:-
1. Whether the learned trial judge failed, refused or neglected to consider in his judgment the issue of statute of limitation raised by the appellant.
2. Whether the trial Court failed in its duty to evaluate the “entire” evidence or the evidence received at the trial or in the light of the motion to dismiss the counter-claim or breached the appellant’s right of fair hearing.
3. Whether the judgment of the trial Court is not sustainable by the evidence on record.

Also incorporated in the respondents’ brief of argument is an argument on preliminary objection challenging the competence of the grounds of appeal vis-à-vis, the issues distilled therefrom.

Arguing issue one, learned counsel for the appellant contended that the capacity of the plaintiff was never an issue otherwise the defendant would have raised it in limine for it to be determined right from the onset. He submits that having failed to raise the issue of the plaintiff’s capacity; the defendant is estopped from questioning the appellant’s right to bring an action for declaration of title. He referred to EBOADE V ATOMESIN(1997)5 NWLR (prt 506) 490.

On issue two, learned counsel relied on Order 17 Rule 21 (1) and (2) of the Cross River State (Civil Procedure) Rules 2008 which prescribes that a defendant shall file his defence, set off or counter claim not later than 14 days after service on him of the claimant’s originating process. Whereas in the present case, no leave of Court was sought to regularize the defendant’s counter-claim, the trial Court acted ultra-vires for acting on the counter-claim which is incompetent. He referred to U.B.A. V. BARR. EYO NSA EKPO (2005) ALL FWLR (prt 241) 376 at 379 and MADUKOLU V. NKEMDILIM (1962) ALL FWLR 582 in submitting that the defendant’s counter-claim was not initiated by the due process of law upon fulfillment of a condition precedent to the exercise of Court’s jurisdiction.

On issue three, counsel submits that the defendant’s counter-claim filed on 22/01/2013 is statute barred by the operation of Section 16 of the Limitation Law Cap. 14 Law of Cross River State 2004. He referred to paragraphs 24 and 25 of the said counter-claim to contend that the cause of action arose in 1977 when the claimant’s father lay claim to the land and property subject matter of this suit, while the suit was filed on 22/1/2013, a period that is far beyond the period of 10 years stipulated in Section 1 of the Limitation Law Cap 14 Laws of Cross River State.

He submits further that other acts of the claimant in respect of the title subsequently do not derogate the fact of the cause of action arising in 1977 when the claimant’s father lay claim to the land and property for which counter-claimant protested the same year.

On issue four, it was the contention of the appellant that assuming the claimant was granted a piece of land to build 5 rooms as per the evidence of DW4, the counter-claimant cannot derogate from the grant and for which relief to trespass is being asked against the claimant. He referred to EKPECHI V. OWHONDA (1998) 3 NWLR (prt 543) 618 at 642 – 643 to the effect that where a guarantor or seller made a definite grant, sale, assign or transfer of title to land in writing, he cannot do anything to disown the grant unless he can successfully plead non est function arising from mistake fraud or intimidation concerning the first transaction. Thus, the lower Court was wrong to have found that the claimant trespassed on the land upon the evidence of the counter claimant.

On issue five, learned counsel submits that the trial judge exhibited manifest bias when he invoked the principle of Quic-Quid plantatur solo solo cedit where there is evidence of grant, sale or assignment of the land. Assuming without conceding the fact that the defendant is the owner of the land, it is however in evidence that the 5 rooms built by the claimant forming part of the landed property in dispute was done upon grant of the land which amounted to transfer of title without reversionary right. He referred to Section 169 of the Evidence Act 2011 to buttress the point that neither the defendant nor his representative in interest shall be permitted to deny the truth of that transfer. He submits further there is evidence that the claimant’s father laid claim to the land and property in dispute back in 1977 and thus there is a presumption that every instrument has been executed in order to perfect his title. Counsel cited NGUBAJO V GON BUBA ANNA (2012) ALL FWLR (prt 623) 1877 at 1943 and also draw the attention of this Court to the material contradictions in the evidence of the defendant but strongly been relied upon by the trial Court. The likelihood of bias by the learned trial judge according to the learned counsel was manifested when he held as follows:-
“A man who lives/on another’s land without permission of the owner does not thereby become the owner of the land. Also a man who builds on another’s land without an arrangement that he owns what he has build, builds for the owner of the land and the principle of Quic-Quid plantator solo solo cedit, what stands on land belongs to the land.”

Finally on issue six, counsel submits that having relied on an incompetent counter-claim, the rejection of claimant’s evidence and disregarding the principle of laches and acquiescence which avails the claimant amongst others in the judgment of the lower Court crystallizes into denial of fair hearing, occasioning miscarriage of justice.

Proffering argument in support of the preliminary objection, learned counsel for the respondents submit that the six issue formulated by the appellant are proliferated and also misrelated to the decision appealed against. He contends that the concept of formulation of issue is to have an issue from a number of grounds of appeal and for an issue to be competent same must relate to the decision from which the appeal lies. Thus, issues, one, two, four and five are incompetent and ought to be struck out. He cited OYEKAN V AKINRINWA (1996) 7 SCNJ 165 at 175, IKENE L.G. V WEST AFRICAN PORTLAND CEMENT PLC. (2012) ALL FWLR (prt 642) 1747 at 1760 and ANIMASHAUN V U.C.H. (1996) 12 SCNJ 179 at 184.

Respecting their issue one, learned counsel for the respondents submits that in an application to dismiss a suit in limine on grounds of bar by statute, the process to look at to discover whether the cause of action accrued is the process been challenged, that is, the counter-claim. He referred to WILLIAMS V WILLIAMS 1245 at 1257.

Counsel further submits that the appellant’s act of taking out a process to dismiss the counter-claim has the demurrer implication and thus deemed to have admitted all the assertions of fact contained in the counter-claim relying on EGBE V ALHAJI (1990) 3 SCNJ 41 at 72.

On whether the counter-claim was caught up by limitation law counsel submits that limitation provisions does not operate upon extraneous considerations or in vacuo. The party who relies on it must establish with absolute certainty from the relevant pleadings when the cause of action accrued from which period a computation is, now made of when time began to run. He referred to paragraphs 13 – 25 of the counterclaim to contend that the 1997 misunderstanding over the subject matter involved only 1st respondent and not others. Thus, if after the exchange of letters the father of the defendant to the counter claim withdrew the claims he sought to make to the subject matter and no acts hostile to the rights of the 1st respondent ever again were nursed, no wrong was committed to give the 1st respondent a cause to sue and person to be sued. In effect, the 1st respondent according to the learned counsel had no cause to plead by way of counterclaim and could not have taken out an action when there was no cause of action. He cited TEIBOGREN V. GOV. DELTA STATE (2015) ALL FNLR (prt 764)1 at 16.

He further submits that Limitation law. Cap L.14 Vol. 4 laws of Cross River State of Nigeria 2004 has no retrospective expression and same cannot be read into it as such the counter claim which was filed on 22nd January, 2013 was never barred and hence the application of the appellant in that regard was clearly unmeritorious.

On the respondents’ issue two, counsel contended that the none evaluation of evidence connotes the assessment of evidence and ascription of probative value leading to the findings and conclusions which exclusively is the business of the trial Court as the appellate Court cannot substitute its own views for the views of the trial Court. He referred to Order 11 Rules 1 and 2 of the High Court of Cross River State (Civil Procedure) Rules 2008 to submit that where a statement of claim was filed out of time, served on the defendant as such and the later filed a statement of defence without protest and allowed the case to proceed to trial and final determination, it would be too late for such defendant to complain on appeal. Thus, even if the appellant in this case could raise issue of irregularity in the vacuum of the absence of a ground of appeal and as fresh issue without leave of Court, he should have acted timeously and before taking a fresh step since discovering the irregularity. He referred to NOIBI V. FIKOLATI (1987)1 NWLR 619 and SAUDE V ABDULLAHI (1989) 7 SCNJ 216 at 246.

On the allegation of bias against the learned trial judge, counsel contended that the appellant cannot chide the Court on the basis of fair hearing for not suo motu visiting the locus in quo and not on its own motion issuing a subpoena or upon applying to the facts of the case, the legal principles. Thus, the appellant was given the opportunity to be heard and to present his case. He submits that there must be circumstances which a reasonable man would think it likely or probable that justice would or did favour one side unfairly at the expense of the other. Fair hearing is never an instrument in the hands of wolf crying litigants. He referred to OGENGBEDE V. ESAN (2002) FWLR (prt 90) 1406 at 1420 – 1421 and BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (prt 622) 290 at 355 to buttress that the appellant failed to show that the legal conclusions and application of principles of quic quid plantatur solo solo cedit and pre resumption of withholding evidence has occasioned a miscarriage of justice.

On their issue three, counsel contended that the appellant in his relief at the trial Court claimed individual title to the subject matter of litigation while the respondents’ reliefs were for the protection of their corporate family title. Therefore, the initial burden of proof was borne by the appellant. The respondents’ onus was to dislodge the evidence of the appellant and on a balance of probabilities establish their counter-claim. He submits that throughout the gamut of the appellant’s pleadings and evidence he did not identify the subject matter but on the contrary, the respondents pleaded facts and led boundary evidence identifying the subject matter which evidence the appellant never controverted. He referred to INEC V. A.D.C. (2009) ALL FWLR (prt 474) 1583 at 1606 to the effect that the appellant must be deemed to have collapsed his case into that of the respondents on the identity of the subject matter and the lower Court was bound to act on these evidence of the defence.

I have carefully considered the two sets of issues formulated by learned counsel but the three issues formulated on behalf of the respondent are quite apposite. I shall therefore determine this appeal on the basis of the three issues formulated by the respondents.

Before delving into the said issues, I shall first of all determine the preliminary objection raised by the respondents. It is settled that where the objection is against the hearing of the whole appeal, then a preliminary objection should be filed against the hearing of the appeal. Where however the objection is against one or more grounds of appeal and is not capable of disturbing the hearing of the appeal but to show the Court the defects in the processes filed before it, then a motion on notice filed complaining of the grounds or the defects would suffice.

In the present case, the respondents are challenging some of the grounds of appeal on the grounds of absence of nexus between them and the issues distilled therein. I have stated elsewhere in this judgment that this appeal is predicated on three grounds of appeal but the appellant formulated six issues for determination. Issues for determination must flow from or related to the ground of appeal and proliferation of issues should be avoided. In other words, the grounds of appeal should in no circumstances be less than the issue for determination. While the Court may tolerate equal number of grounds and issues, a situation where there are less grounds of appeal than issues for determination cannot be tolerated. See AGU V. IKEWIBE (1991) 3 NWLR (prt 180) 385. Where issues for determination not related to or based on grounds of appeal are not only incompetent but completely valueless and must be ignored by the appellate Court. See OMO V. JSC, DELTA STATE (2000) 7 SC (prt 11)1.
In the instant case, issues 1, 2, 4 and 5 of the appellant not been related to or based on any grounds of appeal are incompetent and same are hereby struck out.

Turning back to the substantive appeal, the appellant’s complaint on issue one is that the trial judge failed, refused and or neglected to consider in his judgment the issue of time bar. The appellant by a motion on notice filed on 6/11/2013 had prayed the lower Courts for an order dismissing the respondents’ counter-claim for being statute barred. The ruling on same was adjourned to 13/1/2014 but for the fact that hearing of the substantive suit was almost concluded, learned trial judge decided to deliver the ruling on whether or not the counter claim was statute barred along with the judgment on the main suit. At page 215 of the record of appeal, learned trial judge stated thus:-
“I will begin with the issue whether or not this action is statute barred and if I find it is, the matter will end there. If I find it is not statute barred I will proceed with the judgment.”

The question here is, did the above procedure breached the appellant’s right to fair hearing? Fair hearing means a trial or proceeding concluded according to established rules formulated to ensure that justice is done to all parties even handedly. Thus, no litigant has the liberty to conduct his affairs in law Courts where procedure and practice are regulated by formal procedural rules in a manner he chose for himself, or according to whims and caprices. A breach of fair hearing once sustained in a decision vitiates the whole decision and not just a part of it. In the instant case, the appellant’s grouse is limited to failure or neglect to consider the issue of time bar as opposed to the correctness of the ruling. It is not also his case that he was denied opportunity to be heard fully and thus, the approach adopted did not breach the appellant’s right of fair hearing.

On whether or not the counter claim was statute barred, a cause of action arise on a date or from the time when the breach of any duty or act occurs that precipitated the person thereby injured or the victim who is adversely affected by such an infraction to commence the action to assert his right or have his legal right protected from the breach. In other words, a cause of action arises on the date of the occurrence, neglect or default complained of and not the consequence or result of the occurrence of infraction. See FADARE V. A.G. OYO STATE (1982) 4 SC, A.G. ADAMAWA STATE V. AG FEDERATION (2014) 14 NWLR (prt 1428 515 and ADEKOYA V. FEDERAL HOUSING AUTHORITY (2008) 17 NWLR (prt 1099) 539. In SIFAX (NIG) LTD V. MIGEO (NIG) LTD (2018)9 NWLR (prt 1623) 138 at 183, the apex Court has held that whereas cause of action refers to the facts or combination of facts which a plaintiff must adduce to be entitled to any relief, the action itself is the medium through which the plaintiff litigates his bundle of facts. Thus, a plaintiff’s right of action eventuates from the existence of a cause of action.
In order to ascertain a cause of action, the immediate materials a Court should look at are the writ of summons and the averments in the statement of claim. See EGBE V. ADEFARASIN (1987)1 NWLR (prt. 47)1 at 20. In the present case, it was the counter claim that was alleged to have been caught up by the limitation law. Thus, the materials to be looked at in order to determine the cause of action is the averment in the counter claim. The trial Court relied on the averments in paragraph 13 of the statement of defence and counter claim to agree with the respondents that trouble started in 2011 when the claimant (now appellant) challenged the defendant (now respondents) and when the later started building on the land. And since the action was filed in 2012, the trial Court found that it was not statute barred.
The appellant however argued that the cause of action arose in 1977, when the claimant’s father lay claim to the land relying on the averments in paragraphs 24, 25 of the said counter claim. In Paragraphs 24 and 25 of the counter-claim, the respondents averred as follows:-
24. It is averred by the counterclaimant that in laying false claim to the ownership of the land and property the subject matter of this suit, the defendant is only walking in the late father’s shoes. After their father’s death, the defendant’s fathers sought to lay claim of excusive ownership to their father’s entire estate and particularly the landed property forming the subject matter of this suit. Except for the three rooms inhabited by the counterclaimants, the defendant’s father let out other rooms to rent paying tenants while he kept for himself, his wife and children some.
25. In retort to 1st counter-claimant in 1997 protested this action of the defendant’s father and the defendant’s father caused his lawyers of the firm Utum U. Efeng & Associates to serve the 1st counterclaimant a solicitor’s letter dated 14th April, 1997 and followed that with a Notice to Quit dated 6th May, 1997. In response, the 1st counterclaimant solicitors of the firm of James I. Ofem & Associates issued and served a letter dated 8th August, 1997 on the defendant’s father through his solicitors. On receipt of the 1st counterclaimant’s letter the defendant’s father withdrew to his shell and never again lay claim to the landed property the subject matter of this suit.
Earlier in paragraph 13 – 14, thereof it averred thus:-
“13. The 1st counterclaimant commenced the renovation of the house which the defendant seeks to restrain her from in December, 2011, a few weeks before the defendant came home for Christmas holiday of that year. The defendant saw the extent of work done by the 1st counterclaimant at the time and neither protested nor had the courage to complain knowing that she was carrying out the renovation work as of her own right.”

Rather than the defendant it was one of his half sisters (Friday Iwara Obono) that complained to the Town planning officer Ugeb and upon that complaint, the 1st counterclaimant and the said Friday Iwara Obono were invited by and they attended the Town planning officer who upon hearing the parties and it become clear that the 1st counterclaimant had every right to embark on the renovation, the officer dismissed the complaint and allowed her to proceed with her work.”
I have stated that the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin to maintain his action. Thus, time began to run, when the cause of action crystallizes or becomes complete. It is also imperative to state that every case is decided on its own merits, which means that it is the circumstances of such case that determine what effect any principle of law would have on it. In the circumstances of this case, the respondents’ cause of action could not have arisen at the point when the appellant’s father rescinded his claim after the exchange of solicitor’s letters and that the 1st counterclaimant had obviously no cause to take out an action when there was no grievance. The lower Court was therefore right in holding that the respondent as counterclaimants’ cause of action arose in 2011 when the counterclaimant’s right to embark on the renovation was challenged by the appellant’s half sister. Therefore, the counterclaim was filed within the period of ten years from the date on which the right of action accrued to the counterclaimants in accordance with Section 1 of the extant law.

The crux of the appellant’s complaint on issue two relates to the failure of the trial Court to evaluate the entire evidence as regards the motion to dismiss the counter-claim. The appellant had argued that the respondent ought to procure an extension of time to file their counter-claim and the failure of which rendered the counterclaim incompetent.
It was held in plethora of authorities that the appropriate time at which a party to proceedings should raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. I have also held elsewhere in this judgment that the appellant had responded to the counterclaim and also participated fully in the proceedings. If the party sleeps on that right and allows the proceedings to continue on the irregularity to finality; then the party cannot be heard to complain at the concluding stage of the proceedings or on appeal thereafter that there was a procedural irregularity which vitiated the proceedings. See C.F.A.O. V. THE ONITSHA INDUSTRIES LTD 11 NLR 102 at 103, EZOMO V OYAKHIRE(1985)1 NWLR (prt 2) 195 and SAUDE V. ABDULLAHI (1989) LPELR 3017 (SC). The only exception to this general rule is that the party would be allowed to complain on appeal if it can be shown that he had suffered a miscarriage of justice by reason of the procedural irregularity. In the instant case, the appellant has not shown that the procedural irregularity alluded to has occasioned a miscarriage of justice. Likewise, the appellant has failed to show that the legal conclusions and application of the principle of quic quid plantatur solo solo cedit and or presumption of withholding evidence and the inferences made by the lower Court are unfavourable to him. It needs to be restated here that an appellant who relies on improper evaluation of evidence to set aside the judgment of a trial has the onus to identify or specify the evidence improperly evaluated. He has to convincingly show that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party complaining of the wrong evaluation. See OZUZU V. EMEWU (2019)13 NWLR (prt 1688) 143 at 159.

Finally, the appellant’s grouse on issue three is that the judgment of the trial Court is not sustainable having regards to the evidence adduced. I have reproduced the appellant’s claims as well as that of counterclaimants at the trial Court. Their respective claims are rooted in trespass which is a wrongful entry into the land in actual or constructive possession of another. Being rooted in exclusive possession, all that a plaintiff needs to prove is that he has exclusive possession or that he has the right to such possession of the land in dispute. In an action where the claim is for trespass, two separate and independent issues must be considered. They are:-
(a) Whether the plaintiff established his actual possession of the land and<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(b) Whether the defendant trespassed on it.

Thus, the twin questions to be considered are – what constitute acts of possession and trespass? The appellant as claimant at the trial Court has succinctly put his case in paragraphs 3, 4, 5, 6 and 7 of the statement as follows:-
“3. That by the culture and tradition of Ugep as the 1st son of my late father Mr. Iwara Obono Okoi, I take over all his assets and liabilities including the land and property lying and situate at No 16 Ikpakapit Street, Ugep, and superintend over same for over all interest of the deceased children.
4. That every person in the community knows that the land and property the subject matter of this case is mine by inheritance and does not in any way belong to the defendant nor defendant’s late father Obono Okoi, my grandfather.
5. That the defendant is half sister to claimant late father Mr. Iwara Obono Okoi in that claimant’s father and defendant is from the same late Obono Okoi.
6. That the subject matter of this suit i.e the land and property lying and situate at No.16 Ikpakapit Street, Ugep is owned bonafide by my late father and defendant have no right to share hereto nor defendant father late Obono as can be seen in the attached Exhibits.
7. The claimant avers that during the life time of claimant father, the defendant had problem with her 1st husband and was driven out of the husband house the defendant cried to claimant father who because of brotherly love accepted the defendant and gave her accommodation at No.16 Ikpakapit Street, Ugep.
Also at paragraphs 11 and 12 thereof, it averred thus:-
11. The claimant avers that defendant took advantage of claimant absence of being out of jurisdiction for about a year because of claimant nature of work and trespass, started putting foundation and expanding structure on claimant land and property at No.16 Ikpakapit Street, Ugep.
12. The claimant avers that hearing of defendant encroachment on claimant land and property and after defendant has refused to listen to all wise counseling, the claimant reported the defendant action to the lands department office, Ugep who marked “XX” at the illegal structure for work to stop, thus the defendant ignored which warranted the Department to wrote a “Stop Work” notice and sent to defendant. The claimant was copied.”

In proof of the above, claimant now appellant testified as CW1 and also called CW2 and Cw3. The cumulative substance of the claimant’s evidence was that the claimant’s father was given the land by their paternal family when the claimant’s father returned from Equatorial Guinea wherein the claimant’s father constructed a 4 room building on the land and lived therein.

I have highlighted the pertinent averments of the claimant as well as the evidence in support of those pleaded facts and before answering the twin questions above, I need to stress that the onus is on the claimant to establish his title upon a preponderance of evidence or on the balance of probabilities. This principle also applies to the counter claim. In other words, the claimants must succeed on the strength of his own case not on the weakness of the defence except where the defendant’s case support his case. See SHITTU V FASHAWE (2005)14 NWLR (prt 946) 671, NRUAMAH V EBUZOEME (2013)13 NWLR (prt 1372) 474 and ARIJE V ARIJE (2018) 16 NWLR (prt 1644) 67 at 88.

It is equally trite that both the parties and the Court are bound by the pleadings filed in a particular suit. That being the case, the parties cannot go outside the pleadings to introduce evidence nor can the Court go outside the pleadings to decide the issues in controversy in the matter as evidence given on facts not pleaded goes to no issue. See ONWUKA V. OMOGUI (1992)3 NWLR (prt 230) 393.

In the instant case, the evidence of C3 was to the effect that the claimant’s father was given the land by their paternal family but did not say when the land was so granted and was not privy to the facts concerning how the claimant’s father got the land and built on it. Worst still, none of their paternal family was called to confirm the gift. It was also the finding of the trial Court that the claimant did not plead his father’s route of title and thus all the evidence tracing his route to their paternal family goes to no issue. In effect, the claimant did not establish his actual possession of the land and that the defendant trespassed on it.

I have also reproduced the reliefs sought in the counterclaim in this judgment. The defendant in the counterclaim assumes the position of a plaintiff and the plaintiff in the original action assumes the position of the defendant in the counterclaim. Whether in respect of the claim or the counterclaim the plaintiff or the defendant as the case may be, must discharge the burden of establishing his or their entitlement to the reliefs he or they claims. Both the appellant and the respondents respectively, by virtue of their claim and counterclaim at the trial Court, asserted entitlement to the declaration as being the rightful owners of the land and property in dispute. The trial Court had held and I agree with the findings that the appellant as claimant did not establish his entitlement to the reliefs claimed in the main claim. The question is, did the respondents establish their entitlements to the counter-claimed? As it is the case of the claimant, the declaratory reliefs sought by the counterclaimant are never granted as a matter of course. Thus, the reliefs are obtained on the basis of very strong and cogent case contained in their pleadings and evidence led in support.

In paragraphs 5 – 11 of the counter-claim, the counter-claimants averred as follows:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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5. The land the subject matter of the present action was deforested by Ete Ubi Omini Ogar from whom the land denoted on Okoi Ubi Omini his son. From Okoi Ubi Omini the land passed on to Okoi Ikoi Ubi from whom the land denoted on Obono Okoi Ikoi the father of the counter-claimants. Ete Okoi Ikoi Ubi (the grandfather of the claimants) was a popular Yakurr son who was cited in Yako studies, a book written in the 19th century by Gerald Ford.
6. The said Ete Okoi Ikoi Ubi had many children including Obono Okoi Ikoi (the counter claimant’s father now deceased). At a time Ete Okoi Ikoi was installed the Obot Njokolo of Ugep a traditional chieftaincy stool that required him to reside at the stool He then moved from his house on the land subject matter of this suit to the palace leaving on the land a thatch house and his son Obono Okoi Ikoi to live in.
7. Obono Okoi Ikoi grew up to become a wealthy merchant who dealt on wrappers and hides and skin. During his life time he demolished the thatch house he inherited from his father and built thereon a ten room concrete building and other three houses made up of mud and corrugated iron roof. It is averred that it is the totality of these houses and the land whereon they are situate that form the subject matter of the this action.
8. The counter-claimants and the defendant’s father, were born, lived and bred in these houses and land constituting the subject matter of this action.
9. Throughout the life time of the defendant’s father he built no house whether on the subject matter or anywhere else. Although he was allotted a plot of land by the paternal family at Odongwen in Ugep the land was left undeveloped until his death. He continued to live in counterclaimant’s father’s house on the subject matter until his demise.
10. In erecting the ten rooms concrete building on the subject matter of action the counter-claimant’s father engaged the services of masons including Mr. Egambo (from Mpanghi Biko Biko, Ugep), Mr. Stephen Ujong (now deceased, from Unebe, Ijom Ugep), Mr. Oden Ofem Oden (still alive from Egbizum, Ikpakapit, Ugep) Mr. Udumo Amos (still alive from Egbizum, Ikpakapit Ugep) and Mr. Oden Duke (still alive, from Akugom, Ijom, Ugep). The building plan (No UTPATIS) 74 of 6th September, 1974 attached to the claimants’ statement of claim is one of general building plans which the counter claimants’ father made others which the defendant now surreptitiously keeps away after his father’s death he is hereby given notice to produce.
11. The counterclaimants after that when the defendant originated his outrageous claims, the Elders of the family (not those of the entire community of Lekponkom) mediated in the matter and at the conclusion of the mediation acknowledged as well as declared the title of the counterclaimants’ father to the subject matter and the counterclaimants’ right or interest in it like other living children of their father.”

The counterclaimants as defendant at the trial Court called the family Head of Ubi Omnia Ogar paternal family as DW2. He said the family never gave the land to the claimant’s father. That the defendant inherited the land from their forebears who deforested the lands. Thus, the Head of Ubi Omni Ogar paternal family to which both parties in this case belong confirmed that the claimant went to Town Planning Officer and told him that the land belonged to the defendant’s father and not the claimant which was also followed up with attestation in favour of the defendant in Exhibit 13.

Whereas in the instant case, the claim for damages for trespass is coupled with a claim for injunction, title automatically becomes an issue which should first be resolved by the trial Court and the Court will give judgment to the person who established a better title to the land. See USUNG V. NYONG (2010)2 NWLR (prt 1177) 83. The trial Court was therefore right having believed in the evidence in support of the counterclaim particularly the evidence of DW2 and in the absence of any evidence of ownership of the land by any other person to have entered judgment in favour of the counterclaimants. In dismissing the claimant’s claim and granting the counterclaim, learned trial judge also held at page 223 of the record of appeal as follows:-
“What more does Claimant want before he lets go of his spurious and baseless claim to the land and house at No 16 Ikpakapit Street, Ugep which he has put in dispute here, but to which he has no iota of title. Maybe to the claimant a building plan is a document of title but at law it is not. What stops a man from drawing a beautiful plan and relating it to another man’s land. Nothing as the owner of the land has no means of knowing.
A man who lives on another’s land with permission of the owner does not thereby become the owner of the land. Also a man who builds on another’s land without an arrangement that he owns what he has built, builds for the owner of the land on the principle of quic quid plantatur solo solo cedit, meaning what stands on land belongs to the land.”

The foregoing is unassailable. It is also necessary for me to comment on the submission of the learned counsel for the appellant on the effect of not visiting the locus in quo which according to him vitiates the credibility of the judgment of the trial Court. The law is firmly established that the inspection of locus in quo may generally not be necessary where the area in dispute is clear to the Court and parties as the trial Court should reach its judgment, not on the impressions from the locus in quo, but upon its impression from the evidence before the Court unless there is a special reason or a specific cause for which an inspection has become necessary or desirable. See EBOADE V ATOMESIN (1997) 5 NWLR (prt. 506) 490 at 510 – 511. In the instant case, there is no special reason why an inspection of the locus in quo was necessary as the identity of the land in dispute is clearly not in doubt.

All the three issues having been resolved against the appellant, the appeal must of necessity fail. It is accordingly dismissed.
Parties shall bear their respective costs.
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MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in advance the judgment delivered by my learned brother Muhammed L. Shuaibu, JCA.
My learned brother has painstakingly dealt with the three issues nominated for the determination of the appeal.
I also agree that the appeal lacks merit and deserves to be dismissed.
I abide with the order as to costs.

HAMMA AKAWU BARKA, J.C.A.: The draft judgment of Learned brother, Muhammed L. Shuaibu, JCA, was made available to me before now. I agree with the reasoning and conclusion therein, to the inevitable conclusion that the appeal fails and it is hereby dismissed by me.

The judgment of the lower Court in suit NO. HUG/34/2012 and delivered on the 8th of April, 2014 is hereby affirmed by me. Parties to bear their respective costs.

Appearances:

Chief Cletus Okoi For Appellant(s)

K. U. Ejukwa For Respondent(s)