OKON & ORS v. SAMPSON & ANOR (2021)

OKON & ORS v. SAMPSON & ANOR

(2021)LCN/15516(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/C/155/2018

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. EMMANUEL ETIM OKON 2. OFFIONG ARCHIBONG OKON 3. NANDA PETROLEUM NIGERIA LIMITED APPELANT(S)

And

1. MADAM REBECCA TOM SAMPSON (Nee Affiong Asuquo Effiong Isok) 2. MR. NSIKAK HENRY ASUQUO ISOK (For Themselves And On Behalf Of The Members Of The Family Of Late Asuquo Effiong Isok) RESPONDENT(S)

 

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 9th October, 2017 in the High Court of Akwa Ibom State sitting at Uyo.

In the High Court (the Court below), the Respondents were the plaintiffs while the Appellants were the defendants.

The claim of the Respondents was for a declaration that the Respondents were entitled to inherit the land in dispute, an order of perpetual injunction restraining the Appellants from interfering with the Respondents’ quiet enjoyment of the land, general and special damages of N20 million Naira respectively.

The 3rd Appellant counterclaimed for a declaration that it is entitled to the land and an order of perpetual injunction restraining the Respondents from any act of trespass on the land.

​In summary, the facts of the case of the Respondents are as follows: 1st Respondent and the 2nd Respondent, her nephew jointly inherited the land. Their father and grandfather who was a hunter and traditional doctor first deforested the land and settled there with his family. In 2003, the father of the 2nd Respondent died and a member of the Appellants’ family started making trouble on the land. In 2003, there was arbitration by the village council and the dispute was resolved in favour of the Respondents. Between 2003 and 2011, the Appellants did not interfere.

In 2011, the appellants obstructed the 1st Respondent from entering the land and harvesting any economic trees.
When the Appellants replied the letter of the Respondents’ solicitor, they claimed ownership of the land.

​In their defence, the Appellants denied that the Respondents were the owners of the land. That the 3rd Appellant acquired the land through the principal members of Nung Edere family through the payment of N9.5 Million Naira. That the arbitration proceedings were not concluded because Effiong Asuquo Effiong, elder brother of the 1st Respondent who initiated the proceedings died before the conclusion. That the 3rd Appellant acquired the land after a search and confirmation from all the boundary neighbours to the land in dispute and in consultation with the then village head who was then 80 years old. The village head lived a stone throw to the subject matter. The village head was one of the witnesses mentioned in the arbitration proceedings. That the 1st and 2nd Appellants have owned several contiguous pieces of land and sold some around the subject matter of this suit. Therefore, the land belonging to the Appellants cannot devolve to the Respondents by inheritance. That Okon Uwene, the grandfather of the 1st and 2nd Appellants inherited the subject matter from his ancestors who deforested the land from time immemorial. That the 1st Respondent’s father, Asuquo Effiong was only let into the property to cultivate for subsistence in consideration of the services he rendered to Okon Uwene. That Asuquo Effiong migrated from his village and was a hired hand who performed farm work for people to earn a living.

In its defence and support of its counterclaim, the 3rd Appellant which was initially 4th Defendant said it was the beneficial owner of the land having acquired it for a consideration of N9.5 Million through the Nung Edere family who in turn acquired it from the initial owners, 1st to 3rd Defendants in the initial suit. That the 3rd Appellant acquired the land after due consideration and had applied to the Government of Akwa Ibom State for a Certificate of Occupancy.

After considering the evidence led by the parties and addresses of counsel, the Court below dismissed the counterclaim of the 3rd Appellant and entered judgment in favour of the Respondents.

The Appellants immediately proceeded to this Court by a notice of appeal filed on the 17th October, 2017 in the Court below. The notice of appeal contains three grounds of appeal. From the three grounds of appeal, the Appellants presented the following three issues for determination:
a) Whether the Court, in a suit for declaration of title, having held that the Plaintiffs have failed to proof (sic) title through their chosen traditional history method, is not bound to dismiss the case of the plaintiff.
b) Whether the Court can suo-motu, set up a case for a party and resolve same without asking the parties to address him on it.
c) Whether parties and the Court are bound by the pleadings before the Court.

The Respondent submitted the following two issues for determination:
1. Whether (in a claim for title to land) a party can rely on more than one method to establish his title to land, and or where a proof of title by traditional evidence is inconclusive, whether a party can rely on other method duly pleaded and established in evidence to prove his title to land.
2. Having regard to the pleading and evidence before the trial Court, whether the trial Court had set up a case for a party outside the pleadings and/or resolved any issue suo motu without the involvement of the parties.
The Appellant filed a reply brief.

On issue 1, learned counsel for the Appellants submitted that where the Court has come to the conclusion that the plaintiff has failed to prove title to land through his chosen traditional history, the Court is bound to dismiss the case of the plaintiff without more.
The Court was referred to the five ways of proving title to land nominated in the case of Idundun v. Okumagba (1976)10 SC 277.

It was also submitted that a party seeking for a declaration of title to land who relies on traditional history as proof of his root of title must prove same sufficiently. That is, he must demonstrate in his pleadings the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. Where a party has not given sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession to himself, he has just laid a foundation for the failure of his claim. The Court was referred to Anyanwu v. Mbara & Anor (1992)5 SCNJ 90 and Atanda v. Ajani (1989)3 NWLR (pt.111) 511.

It was submitted that the Appellants herein had a duty to prove their assertion by credible evidence and not just tell a story which does not support the case as presented before the Court.

The Court below in the instant case, it was contended, took time to analyse the evidence adduced in proof of title to the land and came to the just conclusion that the Respondents had failed to prove traditional history of the land in dispute. The Court was referred to pages 336 and 337 of the record.

It was submitted that the Court below having come to that conclusion ought to have dismissed the claim of the Respondents and then consider the merit or otherwise of the counterclaim of the Appellants. The Court was referred to Awodi & Anor v. Ajagbe (2014) LPELR – 24219.

​The Court below, it was contended, made a different case for the Respondents on a different form of acquisition of title instead of dismissing their claim.

On Issue 2, it was submitted that the Court cannot suo motu set up a case for a party and resolve same without asking the parties to address on it.

In the instant case, it was argued, the Court below having held that the Respondents failed to prove traditional history, without calling parties to address it, held that it had seen in exhibit 2 that the subject matter was sold by the Appellants’ father to the Respondents’ father.

​The Court was referred to paragraph 4 of Exhibit 2. It was submitted that paragraph 4 has not said anything about the purpose of the N800 and that cannot by any stretch of imagination amount to a conclusive proof of title to land. It was submitted that the Respondents did not prove such fact. That is, the fact that Exhibit 2 intended to show transfer of title between the parties. That the position of the Respondents was that their great grandfather, one Chief Isok founded the land. The Court was referred to paragraph 8 of the statement of claim and paragraphs 10 and 8 of the depositions of PW2 and PW1 at pages 27 and 33 of the record.

It was contended that the issue raised and resolved by the Court below was an issue of fact which effectively determined the rights of the parties. It was submitted that the Court below ought to have asked the parties to address it on the purpose of N800 before holding that it transferred title between the parties.

On the alleged admission of the existence of Exhibit 2 the arbitration award, it was submitted that an admission by an adverse party is not enough to grant a declaration of title. The Court was referred to Anyaru v. Mandilas Ltd (2007) LPELR 670 SC.
It was submitted that, without conceding that what the Appellants did amounted to an admission, it would still not have been enough to grant title to the Respondents.

On Issue 3, it was submitted that parties are bound by the pleadings before the Court. The Court was referred to Akpapuna & Ors v. Nzeka & Ors (1983) LPELR 384 SC.

​The complaint of the Appellants, it was submitted, is that the Court below provided the Respondents with a case they did not set up in their pleadings and entered judgment from it. The Court, it was submitted, was bound by their pleadings.

It was contended that the fact that the Appellants’ ancestors sold the land in dispute to the Respondents’ ancestors never appeared anywhere in the pleadings, it was argued. The Court below on its own, it was contended, provided the information from a document pleaded and tendered for a totally different reason to grant title to the Respondents.

Arguing Respondents’ issue 1, learned counsel for the Respondents submitted that in a claim for title to land, the plaintiff can rely on more than one method to establish his title to the land if the methods are duly pleaded. The Court was referred to Balogun v. Akanji (1988)1 NWLR (pt.70) 301, Idjah v. Eriavwore (2001) FWLR (pt.57)963 at 972 and Owhonda v. Ekpechi (2003) FWLR (pt.186) 1565. The Court was referred to the findings of the Court below at page 336 – 337. It was contended that the Court below found that the Respondents had proved ownership by traditional evidence and still held that the Respondents had not proved title by traditional evidence. The Respondents, it was pointed out, have appealed against this finding.

It was submitted that the Court below proceeded to consider a third method of proof of title to the land and found that there was proof that 1st Respondent’s father was on the land until his death. The Court below it was argued, at page 338 of the record proceeded to consider the 4th method of proof of title to land.

There was no appeal against these findings, it was contended. It was submitted that the contention of the Appellants that once the Court below founded traditional evidence not established the claim should have been dismissed is misconceived and erroneous in law. Such contention would only arise if the Respondents pleaded only one method of proof which is proof by traditional history.

On Respondents’ issue 2, learned counsel for the Respondents submitted that the trial Court has powers to examine, evaluate and ascribe probative value to evidence or documents before it in order to form its opinion one way or the other, and the exercise does not amount to raising issue suo motu or setting up a case for the parties outside the pleadings.

​It was contended that the Court below did not raise and resolve suo motu any issue that was not borne out of the pleadings and evidence to enter judgment against the Appellants. The Court was referred to the statement of defence of the 3rd Appellant.

It was submitted that the proceedings of the customary arbitration were put in evidence as Exhibit 2. It was submitted that the Court can refer to any document tendered before it to draw inference in the course of its judgment. The Court was referred to Kareem v. State (2018) All FWLR (pt.963) 1786 and Adebiyi v. Dasilva (2019) All FWLR (pt.993) 354 at 426.

It was contended that the Court below did not enter judgment in favour of the Respondents on the basis of Exhibit 2 or document of title of purchase. That when the Court below held that there was no proof of title by traditional evidence, the Court thereafter examined other methods of proof and held that the Respondents had satisfactorily proved their title to the land by other means or methods. The Court was referred to page 338 of the record of appeal.

I am of the view that the only issues for determination in the main appeal are:
1) Whether the Respondents established their claim for declaration of title to the land in dispute.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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2) Whether the 3rd Appellant proved its counterclaim to entitle it to judgment.

The Respondents claimed for a declaration of title to the land in dispute, three other declaratory reliefs, several orders of the Court and damages for trespass into the land. It is settled law that a plaintiff must plead and prove this claim for declaratory relief without relying on the evidence called by the defendant. Such declaratory relief is not granted even on admission by the defendant. See Matanmi & Ors. v. Dada & Anor. (2013) LPELR – 19929. However, there is nothing wrong in a plaintiff taking advantage of any evidence adduced by the defence which tends to establish the plaintiffs’ title. See Oguanuhu v. Chiegboka (2013) 2 SCNJ 693 at 707.

​It is also firmly settled that there are five ways of establishing title to land. These are by traditional evidence, production of documents of title duly authenticated in the sense that their due execution must be proved; by positive acts of ownership extending over a sufficient length of time; by acts of long possession and enjoyment of the land; by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. The establishment of one of the five ways is sufficient proof of ownership. See Ayoola v. Odofin (1984) II SC 120 and Nkado v. Obiano (1997) 9 NWLR (pt.503) 31.

A person who claims declaration of title to land has the burden of setting out clearly by who and how the land was founded and the names of persons who had exercised acts of ownership to the land before it devolved upon him. See Olokotintin v. Sarumi (2002) 13 NWLR (pt.784) 307.

The Respondents pleaded and testified to the fact that their great grandfather Chief Isok deforested the land in dispute. Akpan Isok inherited the land in dispute. Asuquo Effiong Akpan, 1st Respondent’s father inherited it. Asuquo built a bungalow on the land and settled there. 1st Respondent’s brother Elvis Asuquo lived on the land until 2003 when he died.

​In 2003, a dispute over the land between the Appellants and the 1st and 2nd Respondents’ family went before the Village Council of Ifa Ikot Idang and was resolved in favour of the Respondents. The Appellants admitted that there was arbitration by the village council on the dispute but claimed that the dispute was not determined because the plaintiff, 1st Respondent’s brother died. The claim by the Appellants that the dispute was not determined is not borne out of Exhibit 2. Exhibit 2 contains the verdict of the village council. Verdict 1 of the council reads thus:
“1. The land so popularly known and addressed as Asuquo Effiongs compound in Ifa Ikot Abia Nkpo will still remain as such.”

​This verdict clearly confirms the evidence of the Respondents that the council found that the land belonged to them. The Court below erred when it interpreted verdict 4 of Exhibit 2 as evidence of purchase of the land by the 1st Respondent’s brother. As the council found that the land belongs to 1st Respondent’s brother, the N800 referred to in verdict 4 could not be purchase money. Surely Exhibit 2 has not only given a fillip to the case of the Respondents but has also confirmed their evidence that the land is their own. The Respondents testified to the fact that their great grandfather founded the land and gave the names of those who had exercised acts of ownership over the land before it devolved on the Respondents. The Court below rightly found that evidence of PW1 was not discredited. Even that of the PW2 was not discredited. The evidence of PW1 and PW2 was accredited rather by the evidence of DW1 and DW2 under cross examination. Under cross examination, the DW1 stated thus: “only the father of the 1st plaintiff lived on the land.” See page 323 of the record. DW2 said, “I visited the land before payment. I saw trees, mud house – dilapidated….” This evidence has confirmed the evidence of PW2 that before the land was cleared by the 3rd Appellant, she went and took photographs Exhibits 6, 7, 8 and 9 of the existing structure on the land including trees.

It is clear from the foregoing that Issue 1 should be resolved against the Appellants and in favour of the Respondents as the Respondents proved their claim for a declaration of title to the land in dispute.

On the counterclaim of the Appellants, 1st and 2nd Appellants averred in their statement of defence thus:
“Okon Uwene the grandfather of 1st and 2nd Defendant inherited the subject matter from his ancestors who deforested the land from time immemorial.”

I am in entire agreement with the Court below that the 1st and 2nd Appellants did not plead and prove the particulars of their “ancestors who deforested the land from time immemorial” through whom their grandfather Okon Uwene inherited the land in dispute before passing it on to them. No witness was called by the 1st and 2nd Appellants to substantiate their averments in paragraph 13 (d) – (m) of the statement of defence.

Having not led evidence to establish their claim to the land, it follows that they had no title to transfer to anybody. They had nothing to transfer to Nung Edere family who purportedly sold to the 3rd Appellant.
The counterclaim of the Appellants had no basis. Issue 2 is also resolved against the Appellants and in favour of the Respondents.

The appeal lacks merit and is hereby dismissed. The judgment of the Court below is affirmed by me.
Respondents are awarded N100,000.00 costs which shall be paid by the Appellants.

​CROSS APPEAL
On 10th February, 2021, the Court granted extension of time within which the Respondents would appeal against part of the judgment and the notice and grounds of cross appeal already filed on 21st January, 2021 were deemed on the same day. The notice of cross appeal contains two grounds of appeal. From the two grounds of appeal, the Cross Appellant presented the following lone issue for determination:
HAVING REGARD TO THE STATE OF THE PLEADINGS, THE EVIDENCE AND THE FINDINGS OF THE TRIAL COURT, WHETHER THE TRIAL COURT WAS PROPER IN LAW TO HAVE REJECTED THE CROSS-APPELLANTS’ EVIDENCE OF TRADITIONAL HISTORY TO THE LAND AFTER THE COURT HAD HELD THAT THE CROSS-APPELLANTS EVIDENCE THERETO WAS NOT DISCREDITED.

The Cross Respondents’ brief was filed on 28th January, 2021 in which he stated that the only question in the cross appeal is whether the Court below rightly rejected the Respondents’ traditional history after holding that the Cross Appellants’ evidence was not discredited.
The Cross Appellants’ reply brief filed on 9/2/21 was deemed duly filed and served on 10/2/21.

​Arguing the cross appeal, learned counsel for the Cross Appellants submitted that the Court below erred when it failed to uphold the Cross Appellants’ proof of ownership of land by evidence of traditional history despite its finding that the evidence of PW2 and PW1 was not discredited.

It was contended that the Cross Appellants pleaded and proved their ownership of the land in dispute based on traditional evidence, numerous and positive acts of possession to warrant inference of ownership and act of long possession and enjoyment of the land. The Court was referred to the evidence of PW2 and PW1 at pages 7-23, 27, 27-29 and 32-34.

The Court was referred to the judgment of the Court below at page 336. The Court below, it was argued, abandoned the traditional history of the Cross Appellants and proceeded to rely on Exhibit 2 that was tendered in evidence for a different purpose. It was contended that the said exhibit 2 was not part of the evidence of traditional history of the Cross Appellants. That exhibit 2 was never tendered by the Cross Appellants to prove their title to the land but to establish acts of trespass by the Cross Respondents over the disputed land.

​The Court was invited to examine Exhibit 2. It was submitted that it was no evidence of purchase by the Cross Appellants from the Cross Respondents’ family. It was submitted that as far as the issue of purchase or sale was concerned, Exhibit 2 was speculative because the panel never established whether or not there was a sale or purchase at all.

The Cross Respondents’ counsel submitted that Cross Appellants’ witnesses especially under cross examination did not convince the Court below that the land in dispute was deforested by their grandfather. The Court was referred to evidence of PW1 at page 314 to 317 and that of the PW2 at pages 319 to 322 of the record.

The bulk of the argument in the Cross Respondents brief is not related to the issue in the cross appeal. The Cross Appellants’ Reply brief too is not related to the issue in the cross appeal.

​I am in agreement with learned counsel for the Cross Appellants that the Court below erred when it found that evidence of traditional history was not established even though it found that evidence of PW1 and PW2 was not discredited. Cross Appellants pleaded and led evidence by tendering Exhibit 2 to the effect that the village council found that they were the owners of the land in dispute. The Court below erred when it found that Exhibit 2 was evidence of purchase of the land by the Cross Appellants. Exhibit 2 was no such evidence. Rather it showed that the Cross Appellants were the owners of the land.

The only issue for determination in the cross appeal is therefore resolved in favour of the Cross Appellants and against the Cross Respondents.
The cross appeal is allowed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother J. S. Abiriyi, JCA.

My learned brother has painstakingly dealt with the two issues formulated by this Court for the determination of the appeal as well as the sole issue nominated for the determination of the cross-appeal.
I agree with my learned brother’s reasoning and conclusion on the appeal and the cross-appeal. I also dismiss the appeal as lacking in merit and I allow the cross-appeal.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of previewing the judgment just delivered by my learned brother, James S. Abiriyi, JCA.

My learned brother has painstakingly examined the issue raised and canvassed in the cross-appeal.
I also agree with the reasoning and conclusion reached in allowing the cross-appeal.
I also allow the cross-appeal.

Appearances:

Anthony Ebule Esq. For Appellant(s)

Sylvanus Obot Esq. For Respondent(s)