OKUWA & ANOR v. NGERE & ANOR (2020)

OKUWA & ANOR v. NGERE & ANOR

(2020)LCN/15241(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, April 24, 2020

CA/OW/401/2017

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

SAM IGBOKWE OKUWA 2. MRS. COMFORT CHIMA (NEE OKUWA) (For Themselves And As Representing The Family, The Beneficiaries And The Administrators Of The Estate Of Late Dick IgbokweOkuwa) APPELANT(S)

And

PROFESSOR LIVINUS ONYEWUCHI NGERE 2. MRS. RITA ADURE ONYEWUCHI (NEE NGERE) (For Themselves And The Entire Beneficiaries Of The Estate Of Late Peter Agbakwuribe Ngere And As The Administrators Of Late Peter AgbakwuribeNgere) RESPONDENT(S)

RATIO

WHETHER OR NOT AN OBJECTION RAISED AGAINST SOME GROUNDS OF APPEAL CAN QUALIFY AS A PRELIMINARY OBJECTION AGAINST THE HEARING OF THE APPEAL

It was therefore not a preliminary objection as to the competence of the Appeal, as envisaged by Order 10 Rule 1 of the Court of Appeal Rules, 2016. We have stated, several times, that objection raised against some grounds of appeal or against an issue, or the Brief of argument, cannot qualify as preliminary objection against the hearing of an Appeal, since the determination of the same (ground(s) or issue) cannot affect the hearing of the Appeal, as to its competence. See the case of Okereke & Anor Vs. Adiele (2014) LPELR – 24103 CA; Mbata Vs Umezurike & Ors (2019) LPELR – 47331 CA, and Akinbade & Anor vs Babatunde & Ors (2017) LPELR – 43463 SC, where it was held:
“A preliminary objection, it is settled, is only raised against the competence of the appeal rather than some grounds in the appeal.” See also Daudu Vs FRN (2018) LPELR – 43637 (SC). PER MBABA, J.C.A.

WHETHER OR NOT A PARTY CONTENDING THAT A SUIT IS STATUTE BARRED HAS TO PLEAD THE SPECIFIC LAWS THAT BARS THE ACTION

In the case of Awomukwu & Anor Vs Awomukwu (2013) LPELR – 22505 (CA), it was held:
“It is the law that a party contending that a Suit is statute barred has to plead the specific law that bars the action and go ahead to plead the incidents that prove that the action is statute barred in relation to that specific statute.” Per Abba Aji JCA (as she then was, now JSC).
See also Nduka & Ors Agbai & Ors (2018) LPELR – 44270 (CA):
“As rightly pointed out by my noble lord, Oredola, J.C.A., in the lead judgment, that is not how to raise and rely on defence of statute bar… The law is that a defence of statute bar, like other specialized defences, must be pleaded, and failure to do so, will deprive a defendant opportunity to rely on it. See Omotosho Vs Bank of the North Ltd & Anor (2006) 9 NWLR (Pt.986) 573; Bamigbade & Anor Vs Adeyeri & Ors (2012) LPELR-9852 and Oyebamiji Vs Lawanson (2008) 15 NWLR (Pt.1109) 122, where Niki Tobi JSC (of blessed memory) said:
“The correct way of pleading the defence (statute of limitation) is to raise, distinctly, the particular statutory provision relied upon.” See also the case of Mekaowulu Vs Ukwa West Local Govt. Council (2018) LPELR – 43807 CA, … where the above position of the Supreme Court was applied…”
By Order 15 Rule 7(2) of the Abia State High Court (Civil Procedure) Rules, 2014:
“Where a party raises any ground which makes a transaction void or voidable or such matters as fraud, limitation law, release, payment, performance, facts showing insufficiency in contract or illegality either by any enactment or by common law, he shall specifically plead same.”PER MBABA, J.C.A.

WHETHER OR NOT A PARTY IS PERMITTED TO OUT ON APPEAL, A CASE DIFFERENT FROM WHAT HE HAD AT THE TRIAL

A party is not permitted to set out, on appeal, a case different from what he had at the trial. See Agi Vs PDP & Anor. (2016) LPELR – 42578 (SC); Ozomgbachi Vs Amadi & Ors (2018) LPELR – 45152 (SC).
By law, where a party fails to plead a defence but takes part in the case, fully to conclusion, he is deemed to have waived the right to that defence, and cannot raise same on appeal, except where the whole trial was a nullity. See the case of Nwaonu Vs Osouchukwu (2007) ALL FWLR (Pt.374) 313 at 332, and Bakare Vs NRC (2007) ALL FWLR (Pt.391) 1579 at 1596, where the Supreme Court said:
“Limitation of action is the principle of law requiring the Plaintiff, as a matter of obligation, to seek prompt remedy for the breach of his right in a Court of law within the time limited by the law, otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. This principle is used as a defence in actions in tort and contract, amongst other actions. The law requires that it be sufficiently pleaded or otherwise it is deemed to have been waived. See U.B.R.B.D.A. Vs ALKA (1998) 2 NWLR (Pt.537) 328. PER MBABA, J.C.A.

WHETHER OR NOT A GROUND OF APPEAL CAN BE SPLIT TO GENERATE DIFFERENT ISSUES FOR THE DETERMINATION OF APPEAL

Having used the said ground one to formulate the Issue one for the determination of the Appeal, the said ground one of the appeal ceased to be available to donate another issue for the determination of the appeal. See the case of A.G. Imo State & Anor Vs Imo Rubber Estate Ltd & Ors (2019) LPELR – 47579 CA:
“… The law is trite, that one cannot split a ground of appeal to generate different issues for determination of appeal. It is also the law, that once a given ground of appeal has been used to distill an issue for the determination of appeal that ground ceases to be available to be used, either alone or in conjunction with another ground(s) of appeal to generate another issue for the determination of the appeal.” See Obosi Vs NIPOST & Ors (2013) LPELR – 21397 CA.
See also Nigerian Agricultural Co-Op. Bank Ltd Vs Mr. Lewechi Ozoemelam (2016) LPELR – 26051 (SC): PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of Abia State High Court in Suit No. A/17/2017, delivered on 31/5/2017 by Hon. Justice L.T.C. Eruba, wherein his Lordship granted the Claimants claim of trespass, unlawful possession, injunction and damages sought. The Court ordered immediate vacation by the Defendants of the land, holding that the lease of 17th June, 1948 for 999 years, granted by the Colonial Authority, registered as No. 101 at Page 101 in Volume 749 of the Land Registry, then in Lagos, now Umuahia, was still valid and subsisting and that the Exhibit ‘CWD’ (sublease) of 1965 has expired, without option to renew, therefore the Respondents (Claimants) still had interest in the property – See Pages 469 – 494, (particularly 493) of the Records of Appeal.

At the Lower Court, the Claimants (now Respondents) had sought the following reliefs, as per the amended statement of the claim, filed on 15/03/2016:
(a) A declaration that the lease granted to the Claimants’ father – late Peter Agbakwuribe Ngere, in respect of plot 3 Block 84 of “none European” location, now identified or described as or known as No. 44 Tenant Road Aba, registered as No. 101 at Page 101 in Vol. 749 of the Lands Registry Office Enugu (now Umuahia) is valid and subsisting to the exclusion of any other deed in respect of the property, now in dispute.
(b) A declaration that the sublease, granted the late Dick Igbokwe Okuwa by the late Peter Agbakwuribe Ngere, in respect of the aforementioned plot 3 block 84 of “none European” location, now identified or known as No.44 Tenant Road, Aba for a specific term of 20 years only, commencing from February 12, 1965 has expired by effluxion of time, without any option to renew.
(c) An order of Court setting aside and nullifying the Deed of Power of Attorney purportedly granted/donated by the said Dick Igbokwe Okuwa to Emmanuel Okuwa, registered as No.16 at Page 16 in Volume 537 of the Land Registry Office, Umuahia.
(d) An order of Court compelling the defendant, their agents, heirs, privies and assigns to vacate the said property, immediately and deliver up possession to the Claimants, forthwith.
(e) The sum of N200,000,000 (Two Hundred Million Naira only) being general damages against the defendants, their privies, agents, heirs and assigns for trespass and unlawful possession since 1985.
(f) An Order of perpetual injunction restraining the Defendants, their agents, heirs, privies and assigns from committing further acts of trespass or exercising any other act of ownership whatsoever unto or in respect of the subject matter of this action.”

The Claimants at the hearing testified through an only witness (1st Claimant) Professor Livinus Onyewuchi Ngere as CW1. The Defendants called two witnesses, Samuel Okuwa (DW1) and Emmanuel Okuwa (DW2). After hearing the case and considering the evidence and the addresses of Counsel, the learned trial Court held for the Claimants (Respondents) as follows:
“Learned Claimants’ Counsel further submitted that the claimant brought this Suit in two capacities. First, as beneficiaries to the Estate of the late Peter Ngere, who died intestate, and secondly, as Administrators, by virtue of Letters of Administration contained in Exhibit CWA, admitted without objection from the Defendants. These capacities were expressed on the face of the writ of Summons and statement of claim and proved in evidence. He finally submitted that by any of the two capacities the claimants have locus standi to bring the Suit.
In paragraph 6 of the Statement of claim, and also of the Statement on oath of the CW1, the Claimants pleaded and averred that they are the son and daughter, respectively, of the late Peter Ngere as such are his successors in title ordinarily, entitled to administer his estate. This pleading was admitted in paragraph 5 of the Defendants’ Amended Statement of Defence. It has become trite that facts admitted need no further proof. I therefore hold that Claimants’ natural capacity to succeed to the estate of their late father and by which they acquired the Locus Standi to bring this action has been established. I also agree with the learned Claimants’ Counsel that, given the time the Letters of Administration was obtained, it is applicable to the property in dispute as judicial notice is taken of the fact that Abia was then part of the territory of Imo State. In all, Defendants’ objection in this regard is misconceived in law, and the same is discountenanced.
The second issue is that raised by the Claimants which arose from the cross examination of the DW2, where he admitted that his witness statement on oath was signed in the office of his lawyer… The Claimants contended that by the admission, the DW2’s witness statement on oath is in violation of Section 112 of the Evidence Act, 2011 and Section 13 of the Oaths Act… Every affidavit should rather be sworn before a Commissioner of Oaths or Notary Public or such a person authorized by law… Chidubem Vs Ekenna (2009) ALL FWLR (Pt.455) 1692 at 1708, where the Court of Appeal (held) interlia, that the signature and stamp of the Commissioner for Oath on a witness deposition, for instance, is rebuttable presumption that it was signed before him. Where there is admission that it was signed somewhere else, the presumption is rebutted. Again that the two acts of signing and swearing are part of the same transaction, therefore an attempt to draw a distinction between signing and swearing in such a way as to create an impression that the swearing before a Commissioner for Oaths evidenced by the stamp and seal remedies the prior signing somewhere else is unacceptable as the requiring of the law is that deposition on oath must be signed in the presence of the person authorized to administer Oaths… Given the state of the law l am bound by the principles of hierarchy of authority not to accept the evidence led through the DW2. The same is hereby expunged… Judgments is hereby entered in favour of the Claimants…” (See Pages 490 to 493 of the Records of Appeal).

That is the judgment Appellants appealed against, as per the Amended Notice of Appeal, filed on 29/3/2018. Appellants filed their Brief of Arguments on 29/3/18 and distilled 5 Issues for the determination of the Appeal, as follows:
(1) Whether Exhibit ‘CWC’ a Non-European Occupation Lease, dated 17/6/1948 granted by the then Governor and Commander-in-chief of Nigeria for His Majesty the King, to the Respondents’ father, late PETER AGBAKWURIBE NGERE, for 999 years, registered as No.101 at Page 101 in Volume 749 of the then Land Registry Lagos, later Enugu, Owerri and now Umuahia, over the property in issue is still valid and subsisting, today. (Ground 1).

(2) Whether by Exhibit ‘CWC’ (Non-European Occupation Lease) which was admitted by the Appellants, the Respondents thereby satisfied one of the five ways of proving title to land? (Ground 1).
(3) Did the sublease Exhibit ‘CWD’ which expired without option to renew in 1985 leave the Respondents with any interest over the property? If No, was the trial Judge right to have founded as a fact that the Respondents’ father (late) or Respondents, intended or had right of re-entry to the property in issue? (Ground 2)
(4) Was the trial Court right in deciding that the Appellants were in trespass, when evidence showed that the Appellants were in lawful physical possession/occupation since prior to 1960? (Ground 3)
(5) Did the Lower Court have the necessary jurisdiction to hear the Suit which was statute barred? (Ground 4).

The Respondents filed their Brief on 18/5/2018 and adopted the Issues 1, 3, 4 and 5, distilled by the Appellants, for the determination of the Appeal. The Respondents also filed a Notice of Preliminary Objection on the same date, 18/5/2018, raising complaints against grounds 2, 4, and issue 2 of the Appeal. He also picked quarrel with Appellants’ brief.

Appellants filed a Reply Brief on 5/6/2018, which was deemed duly filed on 10/10/2018, to react to the said preliminary objection. At the hearing of this Appeal, on 16/3/2020, the parties adopted their briefs as well as their positions on the objection to the said grounds of the Appeal and issue 2.

PRELIMINARY OBJECTION
What the Respondent claimed to be preliminary objection, was actually, objection against some grounds (2 and 4) of the Appeal, and the issue 2, distilled by Appellant. It was therefore not a preliminary objection as to the competence of the Appeal, as envisaged by Order 10 Rule 1 of the Court of Appeal Rules, 2016. We have stated, several times, that objection raised against some grounds of appeal or against an issue, or the Brief of argument, cannot qualify as preliminary objection against the hearing of an Appeal, since the determination of the same (ground(s) or issue) cannot affect the hearing of the Appeal, as to its competence. See the case of Okereke & Anor Vs. Adiele (2014) LPELR – 24103 CA; Mbata Vs Umezurike & Ors (2019) LPELR – 47331 CA, and Akinbade & Anor vs Babatunde & Ors (2017) LPELR – 43463 SC, where it was held:
“A preliminary objection, it is settled, is only raised against the competence of the appeal rather than some grounds in the appeal.” See also Daudu Vs FRN (2018) LPELR – 43637 (SC).

The Respondents’ grounds for the so called preliminary objection are, that
(i) By decided judicial authorities, a ground of appeal ought to arise from the decision or judgment appealed against or by leave of Court a jurisdictional issue affecting the judgment or decision not canvassed in the Court below
(ii) By decided judicial authorities, issues for determination ought to arise or flow from the grounds of appeal
(iii) By decided authorities, issues identified for determination contained in the appellants Brief of Argument ought not be more than the grounds of Appeal contained in the notice of appeal.

Counsel argued that the grounds 2 and 4 of the Appeal did not arise from the decision appealed against, and no leave was sought to raise the ground 4 as fresh issue; thus, they are incompetent. He also argued that the issue 2, formulated for the determination of the appeal, was incompetent, as it did not flow from any of the grounds of the Appeal.

Appellants, in their Reply Brief, argued the grounds of appeal complained against were competent and derived from the judgment appealed against. He also argued that the ground 4, in particular, was raised, upon the leave sought and obtained on 23/3/2018, to amend the Notice of Appeal. Thus, the issue therein was raised with the leave of this Court. He relied on Dibia Vs The State (2017) 1 SCNLR Vol.2, 335.

I cannot see any merit in the so called preliminary objection, raised by the Respondent, apart from the complaint they raised against the issue 2 by the Appellants, which, contrary to Respondents, was predicated on the ground one of the Appeal, after the said ground one had earlier been used to formulate the issue one for the determination of the appeal. Of course, that is not permitted in law, as a party cannot split a ground of appeal to generate two Issues for determination of appeal. Having used the said ground one to formulate the Issue one for the determination of the Appeal, the said ground one of the appeal ceased to be available to donate another issue for the determination of the appeal. See the case of A.G. Imo State & Anor Vs Imo Rubber Estate Ltd & Ors (2019) LPELR – 47579 CA:
“… The law is trite, that one cannot split a ground of appeal to generate different issues for determination of appeal. It is also the law, that once a given ground of appeal has been used to distill an issue for the determination of appeal that ground ceases to be available to be used, either alone or in conjunction with another ground(s) of appeal to generate another issue for the determination of the appeal.” See Obosi Vs NIPOST & Ors (2013) LPELR – 21397 CA.
See also Nigerian Agricultural Co-Op. Bank Ltd Vs Mr. Lewechi Ozoemelam (2016) LPELR – 26051 (SC):
“… Ground 3 of the Notice of Appeal is therefore split into three to form issues 1, 2 and 3. Since one issue is framed from one, but usually a combination of grounds of appeal, it is manifestly wrong to split one ground of appeal into three issues as the Respondent has done. It is undesirable to split an issue in appeal… It is equally not appropriate to split a ground of appeal in the formulation of issues.” Per Ngwuta J.S.C.
I therefore strike out the Issue 2 by the Appellants, for proliferation. I also strike out the objections against the said grounds of the appeal.

Arguing the Appeal, Appellants’ Counsel, Chukwuma Kalu Esq. on Issue one said that ownership of land is vested in the Governor of the State, relying on Section 40 of the Land Use Act 1978; Ogualaji Vs A.G. Rivers State (1997) 6 NWLR (Pt.508) 209; Eze Vs Obiefuna (1995) 6 NWLR (Pt.404) 639. He submitted that Exhibit ‘CWC’ had been abolished by the Section 40 of the Land Use Act, 1978; that such astronomical instrument, as Exhibit ‘CWC’, with tenure of 999 years (Non-European Occupation Lease of 17/6/1948) has no place in Law. Thus, the position of the Lower Court in holding that Exhibit CWC was still valid instrument, was wrong.

On Issue 3, predicated on ground 2, Counsel admitted that the Exhibit CWD (sublease of 1965 – 1985) was granted by the Respondents’ father (late Peter Agbakwuribe Ngere) to Appellants’ father (late Dick Igbokwe Okuwa), but said that the Respondents, herein, were not privy to it; that the sublease gave the Respondents’ father no right of re-entry, neither did it give right of re-entry to the Respondents. He argued that, because the Appellants were in physical possession of the land before and after the coming into effect of the Land Use Act in 1978, their (Appellants’) deemed right of occupancy subsisted and cannot be overtaken by Exhibit ‘CWA’ (Letters of Administration) dated 25/7/77, obtained by the Respondents, prior to Land Use Act, 1978. He relied on Emmanuel Ilona Vs Sunday Idakwo (2003) 5 SCNJ 330.

On Issue 4 (from Ground 3 of the Appeal), Counsel said the trial Court was wrong to hold that Appellants were trespassers on the land, whereof they were in physical possession. Counsel argued that of the 5 ways of proving title to land, the 3rd and 4th ways deal with exercise of acts of ownership, and acts of long possession and enjoyment of the land. He relied on the case of Salami Vs Lawal (2008) ALL FWLR (Pt.438) 200 and Idundun Vs Okumagba (1976) 9 – 10 SC 227; Ashiru Vs Olukoya (2006) 11 NWLR (Pt.990) 1. Counsel also relied on Section 143 of the Evidence Act, 2011.

Counsel said the position of the trial Court, that Exhibit DWA was a tenancy agreement and not instrument affecting land (and that K.A. Ibekwe had no power to sell the property) was wrong; Counsel said that Exhibits DWA and DWB were all documents evidencing sale of the property to K.A. Ibekwe, vide his son, Chukwu Ibekwe, who sold same at €900 (Pounds) to Appellants’ late father Dick Igbokwe Okuwa; that while Exhibit DWA was made renewable after 10 years at annual rent of 3 Pounds within 10 years, Exhibit DWB called Appellants’ father, ‘Plot owner’. Counsel said:
“I submit further that the said Exhibits DWA and DWB are or amount to documents which put the purchaser Late, DICK IGBOKWE OKUWA (Appellants father – late) in possession as lessee in possession of the land, after payment of purchase prices by virtue of unperfected title document which created equitable interest on the land which cannot be over-ridden by a legal estate.” (Paragraph 7.09 of the Appellants’ Brief)

The above submission clearly shows Appellants Counsel’s confusion of sale/purchase of land with lease of the same.

On Issue 5 (distilled from Ground 4), Appellants said the Suit was statute barred, relying on Section 18 of the Limitation Law of Abia State. Thus, the Appellants said the trial Court lacked jurisdiction to entertain the Suit; that the action was stale, because the Respondents did not take out the suit, timeously; that Respondents’ father had died intestate in 1968; that 1st Respondent secured Exhibit CWA (Letters of Administration) in 1977 (25/7/77); that while Exhibit CWD, which made them (Appellants) to have interest expired in 1985, they (Respondents) filed their action on 26/1/2007! Counsel said that the Respondents had asserted that the Appellants started occupying the property, in trespass, on the expiry of the Exhibit CWD (sublease); thus, the cause of action arose in 1985, but Respondents waited for 22 years to file the action. Counsel relied on Egbe Vs Adefarasin (1985) 1 NWLR (Pt.3) 519; Obiefuna Vs Okoye (1961) 1 SCNLR 144. He added that the fathers of the parties did not have any dispute over the land while alive – that Respondents’ father died in 1968, while Appellants’ father died in 2001; that even when the Appellants’ father developed the property in issue, in his life time, there was no dispute.

Counsel urged us to resolve the Issues for Appellants and to allow the Appeal.

Responding, Counsel for Respondents, Nnamdi Ahunaya Esq, (who settled the brief of the Respondents) on Issue 5, said the trial Court had jurisdiction to try the case; that the Suit was not a claim for declaration of title, but one for continuing trespass; he said that the law is trite, that a claim for trespass is not dependent on a claim for declaration of title, as the issue to be determined in trespass is, whether the claimant has established his actual possession and defendants trespass on the land – Adewale Vs Dada (2003) 4 NWLR (Pt.810) 369 at 378; Counsel said that the cause of action in this case is that Appellants held over the property subject matter of expired sublease, not just that the sublease expired in 1985.

Counsel further argued that the defence of statute of limitation must be specifically and expressly pleaded in the statement of defence, to be considered by the Court; he said that Appellants never pleaded that defence. He relied on Chime Vs A.G. Fed. (2008) ALL FWLR (Pt.439) 550; Olagunju Vs PHCN Plc (2011) 10 NWLR (Pt.1254) 113; Leventis Tech Ltd Vs Petrojessica Ent. Ltd (1992) 2 NWLR (Pt.224) 459. Counsel further relied on Order 15 Rule 7 of the Abia State High Court (Civil Procedure) Rules, 2014, which makes it mandatory for Appellant to have pleaded the alleged special defence in their statement of defence.

Thus, he said, Appellants cannot raise and rely on limitation law, on appeal. He relied on Nwaonu Vs Osouchukwu (2007) ALL FWLR (Pt.374) 313 at 332; Agi Vs Eno (2010) 5 NWLR (Pt.1188) 626.

Counsel also relied on the case Obueke Vs Nnamchi (2006) ALL FWLR (Pt.313) 195 at 204 to state the law that:
“It is a continuing trespass for a person to remain in another’s land, without that other person’s authority or consent. The land owner is always entitled to protection as appropriate.”

See also Oriorio Vs Osain (2012) 50 NSCQR (Pt.1) 158 Per Ngwuta JSC, who said:
“This means that the initial trespass was committed by the Appellants in 1971 but continued to the present time, that is, 29/2/84 when the action was instituted. This is a case of continuing trespass and according to the claims, the appellants were on the land on the day the action was commenced. In my view, the action giving rise to this appeal is not statute barred.”

Counsel also relied on Onagoruwa Vs Akinremi (2001) 13 NWLR (Pt.729) 39 at 61, and said that Appellants did not dispute the existence of the head lease granted for 999 years, with option to renew. He added that the Land Use Act, 1978, did not wipe out the radical interest of parties in the land, be it deemed customary right or statutory right of occupancy in the land. He relied on Nwandu Vs Gov. of Delta State (2014) 49 WRN 99; Savannah Bank Vs Ajilo (2001) FWLR (Pt.75) 513; (1989) 1 NWLR (Pt.97) 305. He also relied on Okito Vs Obioru (2007) ALL FWLR (Pt.365) 568 at 580, which held:
“Where a cause of action is continuing one, a relief sought against such a cause of action cannot be statute barred as the cause of action is de dia in dem, that is, as long as it lasts.”

On Issue 1, Counsel said the Section 40 of the Land Use Act cannot apply to this case, as it did not deal with or pertain to the existence or subsistence and validity of a lease hold (whether as head lease or sublease). He asserted again, that the Land Use Act did not wipe out the radical interest in land – relying on Nwandu Vs Gov. of Delta State (supra); that the law is trite, that the Governor’s power to grant statutory right of occupancy shall not be exercised to deny a prior holder of his title before the coming into effect of the Land Use Act. Such a prior holder is deemed holder of occupancy, if the land situated in urban or non- urban areas respectively, pursuant to Sections 34 and 36 of the Land Use Act. See the case of Agundo Vs Gberbo (1999) 9 NWLR (Pt.617) 71.

Counsel referred us to the findings of the trial Court on page 478 of the Records, to the effect that the Exhibit CWC was a valid instrument affecting the subject matter of the Suit and that all the other documents pleaded and relied upon by the Appellants, as root of title to the land in dispute, did not pass as documents establishing subsisting interest on or over the property. He said this finding was not appealed against.

On Issue 3, Counsel said that the trial Court was right to hold that the sublease (Exhibit CWD) expired in 1985, and that Respondents had the right of re-entry to the property. Counsel said that Appellants’ submission that the Respondents (whom Appellants admitted were the children of late Peter Agbakwuribe Ngere, who granted sublease to the father of the Appellants) were not privies to the transaction (sublease) and had no right of re-entry (or locus standi to sue), was untenable and flawed in law; especially as they (Appellants) were arguing that the sublease had graduated to radical title on them on the land, as a result of the Land Use Act. He stated that the trial Court had settled that issue on page 477 of the Record of Appeal, exposing the barrenness of the Appellants’ argument, who were trying to convert the sublease document to title document over the land and against those who granted them the sublease. Counsel noted that Appellants did not even appeal against those findings of the trial Court.

On Issue 4, Counsel said the trial Court was right to hold that Appellants were in trespass, as it, meticulously evaluated the evidence led in the Suit and faulted the claims that Exhibits CWA and DWB were evidence of sale of the property; he said that the documents (DWA and DWB) which put the Appellants’ father in possession, as lease, cannot override the legal estate of the Respondents in the land. He argued that Appellants had said that Exhibit DWB, in particular, stated that the grantor (Mr. Chuku Ibekwe) will lead Mr. P.A. Okuwa (Appellants’ father) to the Respondents’ father (Mr. P.A. Ngere) at any time desired for assignment (lease); that equity regards as done that which ought to have been done, and he relied on the case of Iragunima Vs R.S.H.P.D.A. (2003) 12 NWLR (Pt.834) 427; Counsel said that the trial Court’s findings on the above argument was impeccable, when it held that the said documents did not pass title and that after the expiration of the sublease, there was no valid document that the defendants could latch on to justify their continued possession of the land. He added, again, that Appellant did not appeal against those findings.

He relied on the case of Monkom Vs Odili (2010) 2 NWLR (Pt.1179) 419, to the effect that a trespasser does not acquire possession by his acts of trespass; that once a party is shown to be the owner of a piece of land, he is in exclusive possession or has a right to such possession, and anyone on the land, without his permission is a trespasser, ab initio. See also Onagoruwa Vs Akinremi (supra).

Counsel urged us to resolve the Issues against the Appellants and to dismiss the Appeal.

In his Reply Brief, Appellants argued that the principle of continuing trespass does not apply to this case, as Respondents had heard of Appellants’ father’s death in 2001, and yet they did nothing.

RESOLUTION OF THE ISSUES
I think the four remaining Issues by the Appellants for the determination of this appeal can be stream lined into three, namely:
(1) Whether the Suit was statute barred by virtue of the Limitation Law of Abia State?
(2) Whether the Respondents were privies to Exhibit CWC and so had subsisting interest in the property (Exhibit CWC), despite the operation of the Land Use Act, 1978?
(3) Whether the trial Court was right to hold that Appellants were trespassers on the land after the expiration of the sublease (Exhibit CWD)?

I shall take the Issues 1 and 2, together, as they all touch on the jurisdiction of the trial Court to entertain the Suit and/or the locus standi of the Respondents to maintain the action, going by the Abia State limitation law and/or Section 40 of the Land Use Act, 1978.

Appellants did not raise any defence of statute of limitation against the Suit at the trial Court, as they did not plead the same in their pleadings nor raise any evidence of that at the trial. They raised that issue for the first time in this Court, as, in my view, a desperate last effort to fight the decision of the trial Court. Appellants and their Counsel should have known that a defence of statute bar, or statute of limitation cannot be invoked or introduced on Appeal, if the same was not raised at the trial Court by way of due pleading and evidence led on it, giving the trial Court opportunity to rule on the issue. Thus, the irregularity was thereby assumed to have been waived, at the trial. In such a situation, the issue of statute bar, raised on appeal, does not arise from the judgment appealed against, but from the blows. In the case of Awomukwu & Anor Vs Awomukwu (2013) LPELR – 22505 (CA), it was held:
“It is the law that a party contending that a Suit is statute barred has to plead the specific law that bars the action and go ahead to plead the incidents that prove that the action is statute barred in relation to that specific statute.” Per Abba Aji JCA (as she then was, now JSC).
See also Nduka & Ors Agbai & Ors (2018) LPELR – 44270 (CA):
“As rightly pointed out by my noble lord, Oredola, J.C.A., in the lead judgment, that is not how to raise and rely on defence of statute bar… The law is that a defence of statute bar, like other specialized defences, must be pleaded, and failure to do so, will deprive a defendant opportunity to rely on it. See Omotosho Vs Bank of the North Ltd & Anor (2006) 9 NWLR (Pt.986) 573; Bamigbade & Anor Vs Adeyeri & Ors (2012) LPELR-9852 and Oyebamiji Vs Lawanson (2008) 15 NWLR (Pt.1109) 122, where Niki Tobi JSC (of blessed memory) said:
“The correct way of pleading the defence (statute of limitation) is to raise, distinctly, the particular statutory provision relied upon.”

See also the case of Mekaowulu Vs Ukwa West Local Govt. Council (2018) LPELR – 43807 CA, … where the above position of the Supreme Court was applied…”
By Order 15 Rule 7(2) of the Abia State High Court (Civil Procedure) Rules, 2014:
“Where a party raises any ground which makes a transaction void or voidable or such matters as fraud, limitation law, release, payment, performance, facts showing insufficiency in contract or illegality either by any enactment or by common law, he shall specifically plead same.”
Of course, the above provision is meant to guide proceedings and put the adverse party on notice, as to what to expect at the trial, in order to prepare for it. In law, the right of fair hearing abhors taking the other party by surprise. And, where a party fails to do the necessary pleadings, and at the trial and lead evidence on the same he cannot spring a surprise, at the appeal stage, and try to raise, smuggle or incorporate a new defence, meant to change the verdict, reached at the trial. See the recent decision of this Court in the case ofJulius Berger (Nig) Plc and Anor Vs Mrs. Philomena Ugo(2020) LPELR – 49544 (CA), where we said, relying on the case of Ntuks and Ors Vs. NPA (2007) ALL FWLR (Pt.387) 809:
“It is now firmly settled that, where a Court of competent jurisdiction has settled by final decision, the matter in dispute between parties, none of the parties or their privies may re-litigate that issue, again, by bringing a fresh action. The matter is said to be resjudicata…”
That of course, remains the law, and no party is expected to re-litigate a Suit which had been heard and determined, finally, by a competent Court, by any guise, simply because he may have discovered something, which he failed to employ at the time the case was heard, which if applied, would have tilted the balance of the case to favour him… Of course, having taken part in the trial of the Suit to conclusion… Appellant must bow to the outcome of the existing judicial process… There would be no end to litigation, if a party is allowed to re-open his cases, already tried to finality, each time he comes to see what he would use to tilt the outcome of the case in his favour, if used, which he failed to use.”

It should be noted that Appellants are predicating their claim of statute bar on the allegation that the Suit was stale; that the Respondents did not take out action to remove them from the land, within 5 years of their holding over, after the expiration of the sublease; that the Respondents took out this action about 22 years after the cause of action arose in 1985 (according to the Appellants); that by Section 18 of the Abia State Limitation Law, 1999, the trial Court lacked jurisdiction to entertain the Suit. The Section 18 of the Abia State Limitation Law, states:
“No action founded on contract, tort or any other action not specifically provided for in parts 2 and 3 of this law shall be brought after the expiration of five years from the date on which the cause of action accrued.”
It is difficult for me to imagine how the above law can apply in the circumstances of this case, whereof the claim is founded on trespass and continuing trespass to land, which the Appellants have acknowledged that the father of the Respondents granted their (Appellants’) father a sublease (Exhibit CWD) on the land, for 20 years, by which they acquired possession (through the Exhibit CWD) to be on the land, from 1965 to 1985. (See pages 179 to 182 of the Records). Appellants have, generously, acknowledged the father of the Respondents as their (Appellants’) landlord, and that the said father of the Respondents enjoyed the head lease of 999 years on the land, by virtue of Exhibit CWC. They however, tried to be smart, by trying to assert title over the land (after holding over, or exceeding their sublease), seeking to invoke aggressively and wrongly, the provisions of Section 40 of the Land Use Act, 1978 (which came into effect in the course of their sublease).
The Section 40 of the Land Use Act, states:
“Where, on the commencement of this Act, proceedings had been commenced or were pending in any Court or tribunal (whether at first instance or appeal) in respect of any question concerning or pertaining to title to any land or interest therein, such proceedings may be continued and be finally disposed of by the Court concerned, but any order or decision of the Court shall only be as respects the entitlement of either of the parties to the proceedings to a right of occupancy, whether statutory or customary, in respect of such land as provided in this Act.”
Appellants had argued that:
“Exhibit ‘CWC’ (Respondents father’s head lease for 999 years) had been abolished by Section 40 of the Land Use Act, 1978, and such astronomical instrument as Exhibit CWC, with tenure of 999 years (Non-European Occupation Lease of 17/6/1948), has no place in our law…” (See Paragraph 4.03 of the Appellants’ Brief of Argument).
By seeking to exploit Section 40 of the Land Use Act, 1978, to claim title over a land they occupied as tenants (Lessee) and deny their Landlord (Sublessor) reversionary rights, Appellants appear to ignore the fact that they had no case (Suit) pending in any Court between them and the head lease holder, at the commencement of the Land Use Act in 1978, and that their (Appellants) position as lessees (tenants) on the land, was never in dispute, neither the position of the Respondents, as the Landlords (sublessors) of the land to Appellants by means of the sublease – Exhibit CWD). Appellants and their Counsel, also failed to take cognizance of Sections 34 and 36 of the Land Use Act, which recognize an owner/occupier of land, prior to the coming into effect of the Land Use Act, 1978, as having a deemed right of occupancy therein. See the case of Adole Vs Boniface B Gwar (2008) LPELR – 189 SC; (2008) 11 NWLR (Pt.1099) 562, on the existence of deemed right of occupancy;Aboshi Vs Fele & Ors (2010) LPELR – 8610 CA; Elayo Vs Veregh & Ors (2019) LPELR – 47134 CA and Ononuju & Anor Vs A.G. Anambra State & Ors (2009) LPELR – 2692 (SC), where it was held:
“A holder or occupier of a land whether developed or underdeveloped in any area not in an urban area, under a recognized customary tenure before the commencement of the Act in March 1978 would continue to have the land vested in him and enjoy such rights and privileges on the land, Right of Occupancy had been granted him by the Local Government of that area. See Dzungwe Vs Gbishe & Anor (1985) 2 NWLR (Pt.8) 528.
… In either case, the holder of the Customary Right of Occupancy of such lands shall continue to hold the land and would be entitled as of right, to a certificate of occupancy under the Act, neither the Governor nor the Local Government would have a right to divest such land from the person in whom the land was properly vested by the issue of Certificate of Occupancy over the land to another person in whom the land was not vested.” Per Aderemi JSC
Of course, the above completely demolished Appellants’ wishful thinking that Section 40 of the Land Use Act, 1978 abolished the Respondents’ revertal rights on the land in dispute, as per the Exhibit CWC, upon the expiration of the sublease in Exhibit CWD, granted to the Appellants. See also SUU Vs Jobak Nig Ltd (2012) LPELR – 7932; Kolo Vs Lawan (2018) LPELR – 44378 (SC).
In the circumstances of this case, it is obvious that the defence of statute bar cannot avail the Appellants, not only because they did not plead and raise the defence at the trial, and so waived the right to rely on it, but also, because such defence cannot apply in a situation of continuing trespass, which Appellants were committing on the land, by holding over the property after the expiration of the sublease. The assertion of ownership or title to the land, in my view, was a mischievous claim alleging that Section 40 of the Land Use Act 1978, had abolished the Respondents’ right/interest in the land.
The law is trite, that a trespasser cannot ultimately acquire title by his long and persistent trespass on the land he occupies. The doctrine of continuing trespass postulates that a cause of action arises from day to day, so long as the trespass lasts and every passing day of the trespass gives a fresh cause of action. See Obueke Vs Nnamchi (2006) ALL FWLR (Pt.313) 195 at 204; Oriorio Vs Osain (2012) 50 NSCQR (Pt.1) 158; Onagoruwa Vs Akinremi (2001) 13 NWLR (Pt.729) 39.
Of course, where a defendant asserts ownership of a land he is accused of trespassing on, ownership of the land is put in issue, and the Defendant who lays such claims of ownership has the duty of proving his title (as he who alleges must prove). See Section 131 and 133 of the Evidence Act, 2011 In this case, Appellants (as defendants) did not file any counter-claim, to assert their ownership of the land. Instead, they conceded and admitted being on the land by the grace of the father of the Respondents, who sublet the land to their father, for 20 years (from 1965 to 1985, as per Exhibit CWD). Appellants had also acknowledged the Respondents, as the children of Peter Agbakwuribe Ngere, who sublet the land to their (Appellants’) father, and that Respondents’ father had a 999 years lease on the land (Exhibit CWC). It is therefore, very strange and worrisome, that Appellants in this case, with such clear admissions and knowledge that they entered the land at the mercy/authority of the Respondents’ father, and were to occupy same for a time certain (1965 to 1985), opted to lay claims and assert ownership of the same land, fraudulently. They even questioned the power of the Respondents to maintain the action, saying they (Respondents) were not privies to the contract of the sublease, to bring the case.
I do not think Appellants were properly advised in this case, as they appear to act as a robber, who dares the owner of the goods he stole or converted, seeking the Court to bar the owner from ordering recovery of the goods and asking to be declared the owner of the goods. A party cannot be allowed to use the judicial process wrongly, to advance mischief and turn round to profit from it. That is an abuse of the Court process. See the cases of Nnolim vs Nnolim (2017) LPELR – 41642 CA; Nwosu Vs PDP &Ors (2018) LPELR – 44386 (SC); Julius Berger Nig. Plc Vs Ugo (2020) LPELR – 49544 (CA), where this Court screamed:
“I lack appropriate words to describe the depth of the depravity, impunity and abuse of the Court process, displayed by Appellants and their Counsel in this case! No lawyer worth his name should engage in this type of practice, which appears as a deliberate act of mischief to frustrate, annoy and oppress a successful party in litigation, pretending to pursue a Court process.”
Appellants aggressively and forcefully occupied the land, after the expiration of the sublease, claimed ownership of the property, and now seek coverage under the Land Use Act, to deny the Respondents re-entry to the land. I think that is a typical case of continuing trespass, with impunity. Where a cause of action is one of a continuing trespass, a relief sought in that cause against the trespass, cannot be statute barred, as the cause of action remains, as long as the trespass lasts. See Okito Vs Obioru (2007) All FWLR (pt.365) 568 at 580.
I therefore resolve the Issues 1 and 2 against the Appellants.

Was the trial Court right to give judgment to Respondents; that Appellants were in trespass?

From my resolution of the Issues one and two above, it becomes easy to resolve this 3rd Issue, in the affirmative. Appellants had admitted that they were on a sublease on the land in dispute, as per the Exhibit ‘CWC.’ The trial Court had made the following finding on the Issue:
“This leasehold contained in Exhibit CWC was admitted by the Defendants. In paragraph 6 of the Amended Statement of Defence, the Defendants admitted paragraph 7 of the Statement of claim, wherein the claimants pleaded the said leasehold in Exhibit CWC as their late father’s title to the property in dispute. Under cross examination, the DW2 testified as follow:
“It is not in question that the claimants’ father was the first person granted lease over the land subject matter of this dispute for 999 years, but he passed same to K.A. Ibekwe who passed same to my father.”
No evidence can be stronger than this to establish that the claimants’ father had a prior and fundamental title to the land in dispute. The head lease in Exhibit CWC was tendered by CW1, without objection from the defendants. It is an instrument affecting land within the meaning of Section 15 of the Lands Instrument Registration Law. And it was registered. I hold that it is valid instrument affecting the land and the subject matter of this Suit.” (See page 478 of the Records)

The said head-lease (Exhibit CWC) was recited in Exhibit CWL (Power of Attorney) dated 22nd April, 1991 and registered as No. 16 at Page 16 in Volume 537 at the Lands Registry. The trial Court further held:
“Beyond these admissions, Claimants evidence that their late father became the title holder to the property in dispute by virtue of this lease was unchallenged by the defendant. When a material fact is unchallenged the honourable Court has duty to accept such fact as established and shall give it its full weight. The superior Courts have put it succinctly as follows:
“Where evidence given by a party is non-challenged by the adverse party who had the opportunity to do so, the Court ought to act positively on the unchallenged evidence before it.” Cameroon Airlines Vs Otutuizu (2011) 2 SCNJ 96 at 118-119. It is settled law that evidence that is neither attacked nor successfully challenged, is deemed to have been admitted and the Court can safely rely on the evidence in the just determination of a case… Gov. Zamfara State Vs Gyalange (2013) ALL FWLR (Pt.658) 821 at 841.” See pages 478 – 479 of the Records of Appeal.

The above clear and impeccable findings of the trial Court have not been appealed against by the Appellants in this Appeal. Instead, Appellants in paragraph 5.10 of their Brief argued that:
“The lower Court’s position, that because Exhibit CWC was admitted, and referred to in the recital of Exhibit CWL (Power of Attorney dated 22/4/1991) granted by Appellants’ father to his son Emma Okwua (sic) and the said Exhibit CWC was unchallenged, it meant title to the property resides in Exhibit CWC, is wrong proposition, and also cited cases of …, are all inapplicable.”

The law is trite, that a finding(s) of a Court not appealed against remains valid, binding and conclusive. See Ezike & Anor Vs Egbuaba (2019) LPELR – 46526 (SC); Dabo Vs Abdullahi (2005) 2 SC (Pt.1) 75; (2005) 7 NWLR (Pt.923) 181; Leventis Technical Vs Petrojessica (1999) 6 NWLR (Pt.605) 45; (1999) 4 SCNJ 121 at 127.

I cannot therefore, fault the findings and decision of the learned trial Court on this Issue. I have already reproduced some leading decisions of this Court (and the Apex Court) on the law that a trespass on a property remains a trespass, no matter how long and cannot be converted by the trespasser to a right of ownership and title (except the true owner foregoes or forfeits his right). The Appellants were in continuing trespass, after the expiration of the sublease in 1985. See Onagoruwa Vs Akinremi & Ors (2001) LPELR – 2667 (SC); (2001) 13 NWLR (Pt.729) 38:
“It is trite law that it is a continuing tort of trespass for a person to remain in another’s land without that other’s authority or consent, so that barring defences properly raised and sustained which defeat the right of the owner of such land to complain of the continuing trespass, the land owner is always entitled to protection as appropriate. See Adepoju Vs Oke (1999) 3 NWLR (Pt.594) 154 at 163 – 164.
See also Chukwuma Vs Ifeloye (2008) LPELR – 862 SC; (2008) 18 NWLR (Pt.1118) 204; Asaboro & Anor Vs Pan Ocean Oil Corp. Nig Ltd & Anor (2017) LPELR – 41558 (SC); Olubodun & Ors Vs Lawal & Anor (2008) LPELR – 2609 SC.

I do not therefore see any merit in this Appeal, as I also resolve the Issue 3 against the Appellants and dismiss the Appeal. Appellants shall pay the cost of this appeal, assessed at One Hundred Thousand Naira (N100,000.00) only, to the Respondents.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read in draft the judgment just delivered by my Noble Lord I.G Mbaba, JCA and agree with his reasoning and conclusion that this appeal is unmeritorious and is hereby dismissed by me. I adopt the orders therein made as mine.

Appearances:

CHUKWUMA KALU ESQ For Appellant(s)

NNAMDI AHUNANYA ESQ For Respondent(s)