OQUA & ORS v. AYITO (2020)

OQUA & ORS v. AYITO

(2020)LCN/15470(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/C/158/2019

RATIO

WORDS AND PHRASES: ABUSE OF COURT PROCESS

DUTY OF COURT: CONSTITUENT OF A GOOD JUDGMENT: WHETHER ANY ERROR IN JUDGMENT CAN RESULT IN THE JUDGMENT BEING SET ASIDE

It is trite that a trial judge is free to adopt any style in writing a judgment but the basic requirements of evaluation and perception of the evidence after its summary must be clearly demonstrated in the judgment. In other words, a good judgment must contain how the evidence was evaluated and appraised and the findings of the facts and conclusion reached on them by the trial judge must be visible and explicit in the judgment. See BORISHADE V F.R.N. (2012) 18 NWLR (prt 1332) 347 at 420 – 411.

However, it is not every slip of a judge that can result in the judgment being set side. For a mistake to so result, it must be substantial in the sense that it affected the decision appealed against. See ONAJOBI V OLANIPEKUN (supra). In ADEBAYO V A.G. OGUN STATE (2008) 2 SCNJ 352 at 366 – 367 per Niki Tobi JSC (of blessed memory) said:-
“In order to pick faults in the judgment of a trial judge, appellate Court should not take paragraph or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An appellate Court cannot allow an appellant to read a judgment in convenient instalments under to underrate or runs down the judgment.”
In C.C.G. (NIG) LTD V IDORENYIN (2015) 13 NWLR (prt 1475) 149 at 169 – 170, the Supreme Court has held that even where some of the mistakes or errors are substantial in order to push the hand of the appellate Court to interfere with a finding, the error must in one way or the other have occasioned a miscarriage of justice. In the instant case, the premature comment of the learned trial judge did not ipso facto occasioned a miscarriage of justice. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

DUTY OF COURT: EVALUATION OF EVIDENCE: WHETHER AN APPELLATE COURT MAY INTERFERE WITH THE FINDINGS OF A TRIAL COURT

The law is trite that it is within the purview and competence of the trial judge to first evaluate the evidence of witnesses. He does not share this jurisdiction with the appellate Court. He has the exclusive jurisdiction to first evaluate the evidence of the witnesses. And where the evaluation of the trial judge is borne out from the evidence in Court, an appellate Court cannot interfere. However, where the evaluation by the trial judge is not properly borne out from the evidence before him, an appellate judge is competent to re-evaluate the evidence on the record before him and come to a proper decision. See IWUOHA V NIPOST (2003) (Supra). PER MUHAMMED LAWAL SHUAIBU, J.C.A.

WORDS AND PHRASES: MEANING OF A PERSUASIVE DECISION

A pervasive decision is one that persists in error and thus contrary to the ordinary expectation or against the weight of evidence. It also occurs where matters which ought not to have been countenanced are taken into account and eyes are shut to the obvious. SeeATOLAGBE V. SHORUN (1985), NWLR (prt 2) 360. In determining whether a decision is perverse or not, recourse should be had to the state of pleadings and the evidence led at the trial. See AGBONAYINMA & ANOR V. IDEHEN & ORS (2019) LPELR – 48999 (CA). In ABANG V. NDOMA (2020) LPELR – 50223 (CA) it was held that evaluation of evidence entails the trial judge examining all the evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other. In other words, evaluation involves reviewing and criticizing as well as estimating the evidence and it is by this process that the Courts can arrive at the proper decision of who to believe and who to disbelieve. Hence, the belief must be a reasoned preference of one version of the evidence to the other. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

TITLE TO LAND: WHETHER A DECLARATION OF TITLE MAY BE GRANTED WHERE THERE IS DOUBT AS TO THE IDENTITY OF THE LAND IN DISPUTE

It is well settled that in a claim for declaration of title, it will be wrong of a trial Court to grant the declaration if there is any doubt as to the identity of the land in dispute. It is also true that where the description of the land in dispute by the claimant is so clear that it leaves the defendant and the trial Court in no doubt as to the exact area of the land claimed, so that a surveyor can from the description by the claimant, draw an accurate plan showing the land in dispute then the onus to prove the area of the land in dispute is discharged by the claimant. See KWADZO V. ADJEI, 10 W.A.C.A. 274 and EZEUDU & ORS V. OBIAGWU (1986)2 NWLR (prt 21) 208 at 219. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

TITLE TO LAND: WAYS BY WHICH A PARTY MAY PROVE TITLE TO LAND

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

H.R.M. NDIDEM PATRICK INOK OQUA & 2 ORS (For Themselves And On Behalf Of The Entire Ikot Ansa Community (Nkonib) Of Calabar Municipality) APPELANT(S)

And

H.R.H. (NTOE) EDEDEM OKON AYITO (For Himself, Etab Ayip Village And On Behalf Of The Entire Kasuk II Qua Clan, Calabar) RESPONDENT(S)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of High Court of Cross River State sitting at Calabar Judicial Division (Coram) Imelda B. Etape J, delivered on 21st day of February 2019 wherein the learned trial judge entered judgment in favour of the respondent herein and struck out the appellants’ counterclaim for being an abuse of Court process.

Dissatisfied, appellants appealed to this Court through a notice of appeal filed on 29/3/2019. By leave granted on 16/6/2020, appellants have amended their notice of appeal and the extant amended notice of appeal contain eight (8) grounds of appeal.

Briefs of argument including appellants’ reply brief were exchanged by the parties in accordance with the rules of this Court. The appellants nominated four issues for the determination of this appeal while the respondent adopts the four issues nominated by the appellants. In addition, the respondent raised a preliminary objection seeking for an order dismissing the appeal for being incompetent. The four issues nominated by the appellants and adopted by the respondent for the determination of this appeal are as follows:-
1. Whether on a proper consideration of the state of pleadings and the totality of the evidence before him the learned trial judge was right when he declared title to the land in dispute in favour of the respondent on the basis of act of ownership, long possession and use of the land in dispute when he failed to prove his root of title on traditional history as earlier pleaded?
2. Whether the learned trial judge was right when he adjudged the appellants as trespassers and awarded the sum of one Hundred Million Naira (N100,000,000.00) against them for trespass, inspite of the fact that the respondent did not prove a better title to the land in dispute.
3. Whether the learned trial judge was right when he declared title in favour of the respondent who had admitted that part of the land in dispute belonged to the appellants while the other part thereof belonged to entirely different clans/communities from his?
4. Whether the learned trial judge did not breach the appellants’ right to fair hearing when he considered and upheld the claim of the respondent before going into a consideration of the appellants’ defence and counter-claim which he struck out on the ground that it constituted an abuse of Court process?

At the oral hearing of the appeal on 5/10/2020, both learned counsel for the parties adopted their respectively briefs of argument and proffered additional submissions in amplification thereof.

Before delving into the respective submissions of the learned counsel on the main appeal, it is prudent to first and foremost consider the preliminary objection against the hearing of the appeal as raised by the respondent.

Arguing the preliminary objection, learned counsel for the respondent submitted that a party who wants to file a notice of appeal that requires leave of Court must first obtain such leave before filing such notice. Thus, the appellants’ amended notice of appeal which was filed before leave of Court to amend the same was obtained, is defective and consequently, the issues formulated from the grounds in that notice of appeal are equally defective. He cited ANI V. OTU (2017) 12 NWLR (prt 1578) 30 at 71 and OHAJUNWA V. OBELLE (2000) 3 NWLR (prt 1073) 52 to the effect that the defect is not cured by the subsequent order deeming the amended notice of appeal as properly filed.

On issue No.3 formulated from ground 4 of the amended notice of appeal, learned counsel referred copiously to particulars of errors Nos (i), (iv) and (v) and submitted that same is unarguable and unstainable because the particulars of errors in support are so heavily contradictory and self conflicting and misrepresented. Counsel contended that appellants have grounded their appeal on the premise that there were two acquisitions of their land in 1972 and 1977 knowing fully well that the subsequent acquisition was not made from their community and thereby presenting inconsistent and self contradictory facts.

Still in contention, counsel argued that the appellants knew that the area of land released by the Nigerian Army which is contained in Exhibit 9 was not in contention before the lower Court but yet grounded their appeal on the ground that the said land is in dispute between the parties. He submitted that the appellants ground 4 and issue 3 distilled therefrom being fraught with inconsistencies and contradictions is unarguable and therefore liable to be struck out. He cited OLOWOSAGO V. ADEBANJO (1988) 4 NWLR (prt 88) 275 at 283 to the effect that the appellants are wrongly accusing the trial judge of a failure to give due consideration to an issue that never happened at the trial Court that is the alleged admissions by the respondent of the fact that 146 hectares of the land in dispute belong to the appellants and that part of the land in dispute is situate in another clan, Kasuk I Qua clan.

In response to the above, learned counsel for the appellants submitted that the respondent did not give formal notice of preliminary objection as required by Order 10 of the Rules of this Court and therefore urged this Court to discountenance the objection.

On the respondent’s contention of obtaining leave before filing an amended notice of appeal, learned counsel drew a distinction between filing of an original notice of appeal which originates the appeal with filing of an amended notice and grounds of appeal. He submitted that like a writ of summon, a notice of appeal cannot be deemed and where leave is required, the leave must first be sought and obtained before the notice of appeal can be filed. He contended that it is not the original notice of appeal of 29/3/2019 that was deemed by this Court on 16/6/2020. Counsel cited ERISI V. IDIKA (1987)4 NWLR (prt 66) 503 in submitting that after the grant of leave by this Court, it is natural to make consequential order by deeming the notice and grounds filed to have been duly and properly filed. Still in contention, counsel submitted that once appropriate filing fees is paid for deeming an amended notice of appeal or any Court process properly filed, a deeming order can be made to cover the already filed Court process, relying on the authority in the cases of UNITY BANK PLC. V. EDWARD BOUARI (2008) 7 NWLR (prt 1086) 372, ABAYE V. OFFILI & ORS (1986) 1 SC 231 at 278, AKEREDOLU V. AKINREMI (1986) 2 NWLR (prt 25) 710 at 726 and ADETONA V. GEO RESOURCES LTD & ORS (2012) LPELR – 7860 (CA).

In further contention, learned counsel submitted that the amended notice of appeal is competent and so also the issue formulated therefrom. Also having fiercely contested this ground of the objection, it is contemptuous of the respondent to raise the objection for the second time as this Court cannot sit on appeal over its decision of 16/6/2020. He cited AG FEDERATION V. THE PUNCH (NIG) LTD (2019)15 NWLR (prt 1694) 40 at 60.

On the validity of issue No.3 distilled from ground of appeal No 4, counsel submitted that the complaint in ground No.4 is clear and the respondent is not in anywhere misled about what the appellants are complaining therein. Thus, issue 3 relates to the ground and not formulated at large but rooted in the said ground. Appellants’ contention is that the trial judge had a duty to determine the area released to the appellants as belonging to them and see whether they exceeded the area of acquisition released to them. In effect, the appellants maintained that the learned trial judge did not properly address the issues before him dispassionately, evaluate and appraised the evidence on record.

By virtue of the provision of Order 10 Rules 1 and 3 of the Court of Appeal Rules, 2016, a respondent intending to rely upon a preliminary objection to the hearing of appeal, shall give the appellant three clear days notice before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the registry within the same time. Where however, the respondent fails to comply, the Court may refuse to entertain the objection or may adjourn the hearing or may impose costs as it thinks fits.
The appellants complained that the respondent did not give them the formal notice of preliminary objection pursuant to Order 10 above but they nonetheless responded to the said preliminary objection. The purpose of giving notice of preliminary objection is to give the adversary an opportunity of reacting to the objection and to avoid any surprise. Thus, where as in the present case, the objection was argued in the respondent’s brief and the brief was served on the appellants who had opportunity to react to it and indeed have reacted, it will be stretching Order 10 too far to insist on formal notice of preliminary objection. AGBAKA V. AMADI (1998)7 SC (prt 11) 18 at 23 – 24.

Moving forward to the respondent’s objection, the first issue relates to the appellants’ failure to obtain leave prior to the amendment of their notice of appeal. It is beyond any argument that where a notice of appeal is defective in that there is no competent and valid ground of appeal in it such defective notice of appeal cannot be cured by the filing of amended ground of appeal and the Court of appeal can strike out the appeal itself.
What played out in the present case is that the appellants have filed their original notice of appeal on 29/3/2019 and thereafter with leave of Court amended the original notice of appeal which was deemed as properly filed on 16/6/2020. It is a well established principle of law that once ordered, what stood before an amendment of a process is no longer material before the Court and no longer defines the issue to be tried. And since the original notice of appeal is competent, what this Court did was merely deeming the already filed amended notice and grounds of appeal which to my mind is the natural consequential order regulating proceeding before the Court by deeming the said amended notice of appeal filed as properly filed. In OJORA V. AGIP (NIG) LTD (2005) 4 NWLR (prt 916) 515 at 541 – 542 it was held that such a consequential order gives a de jure recognition to what the appellant did de facto in taking his notice of appeal to the registry of the Court and paying the requisite fees. Similarly, where an appellant files a notice of appeal accompanied by grounds of appeal on facts or mixed law and facts, within time, he may apply for leave to argue grounds of fact or mixed law and fact and the original notice of appeal will be deemed to be notice filed also for those grounds requiring leave. AKEREDOLU V. AKINREMI (1986) 2 NWLR (prt 25) 710 at 734.
Since the original notice of appeal in the instant case is competent, the amended notice of appeal is certainly not a new notice of appeal and same was validly deemed by this Court.

It was also contended by the respondent that issue 3 formulated from ground 4 of the amended notice of appeal is unarguable and unstainable same having been so heavily contradicted and misrepresented. A ground of appeal consists of errors of law or fact which an appellant sees as a defect in a judgment, and which he relies upon in asking an appellate Court to set aside. See METAL CONSTRUCTION W.A. LTD V. MIGLIORE (1990) 1 NWLR (prt 126) 299.
In order to determine whether or not a ground of appeal is relevant to the issue formulated in any appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the parties. It was also laid down in a number of cases that an appeal will only be determined on issue arising out of the grounds of appeal before the Court and no argument on any issue not predicated on such grounds of appeal will be countenanced. See AGU V. IKEWIBE (1991) 3 NWLR (prt 180) 385 and OJIAKO V. EWURU (1995) 9 NWLR (prt 420) 460 at 469.

Ground 4 in the appellants’ amended ground of appeal read as follows:-
“GROUND FOUR: ERROR IN LAW:
The learned trial judge erred in law when he failed to give due consideration and made pronouncement on the effect of the respondent’s admissions of the fact that 146 hectares of the land in dispute belong to the appellants and that part of the land in dispute is situate in another clan, Kasuk 1 Qua clan.
PARTICULARS OF ERROR
(i) There were two (2) acquisitions made of portions of the appellants’ land by the Federal Government of Nigeria for the use of the Nigerian Army.
(ii) The first acquisition was in 1972 and it contained 146 hectares while the second acquisition was in 1977 and it contained 140 hectares of land.
(iii) The 146 hectares of land covered by the first acquisition of 1972 was excised from the Nigerian Army Barracks land and released to the appellants via a Deed of Release (Exhibit 21)
(iv) The land delineated and shown in Exhibit 21 is part of the land in dispute claimed by the respondent.
(v) The land in dispute comprises of the whole of the second acquisition of 1977 and part of the first acquisition of 192.
(vi) The respondent admitted that the 146 hectares of land was acquired from the appellants’ community but subsequently released to the appellants in 2006 via Exhibit 21.
(vii) The respondent also admitted that the first acquisition of 1972 belongs to the appellants. In other words, the only land in dispute then became the second acquisition in 1977.
(viii) The respondent is the clan Head of Kasuk II Qua Clan and he instituted the suit, HC/242/2017 on behalf of Kasuk II Qua Clan and not on behalf of Kasuk I Qua Clan.
(ix) The respondent also admitted that the second acquisition of 1977 bothered on the land situate in villages of Kasuk I Qua Clan.
(x) Kasuk I Qua clan is an independent clan from Kasuk II Qua clan on whose behalf the respondent instituted the action.
(xi) The learned trial judge made declaration of title in respect of the entire land in dispute in favour of the respondent, that is to say both the one admitted to belong to the appellants and the other admitted to belong to Kasuk I Qua clan in favour of the respondent.

The issue distilled from the above is again reproduced hereunder as follows:
Whether the learned trial judge was right when he declared title in favour of the respondent who admitted that part of the land in dispute belonged to the appellants while the other part thereof belong to entirely different clans/communities from his?

There is no doubt that there is an affinity between the above ground and the issue distilled therefrom and thus ground 4 of the appellants’ amended ground of appeal would be relevant in any appeal against the judgment of the lower Court. This is so because it is settled that a judgment subsists until it is set aside and an aggrieved person who has not appealed against a judgment stands no chance of seeking to have the judgment set aside in an appeal. I agree with the submission of the appellants that whether or not the respondent made the alleged admissions is certainly an argument to be put forward in the brief of argument by the respondent in response to that issue posed by the appellant and not as a point of objection.

In so far as ground 4 of the amended grounds of appeal is derived from the ratio decidendi of the judgment appealed against and which fact is not been contested by the respondent, issue 3 distilled therefrom by the appellants is competent. Therefore the respondents’ preliminary objection is devoid of any merit and same is accordingly dismissed.

Having dismissed the respondent’s preliminary objection to the hearing of this appeal, I will proceed to consider the respective submissions of counsel on the four issues nominated by the appellants and adopted by the respondent.

ISSUE NO. 1
The appellants’ contention on issue 1 is that whereas in this case there is claim for trespass, damages and injunction by a claimant and the defendants’ counter-claimed, title to the land is put in issue. It was also contended by the appellants that the land in dispute was traditionally owned by them but subsequently acquired by the Federal Government for the construction of Eburutu Army Barracks which the said Federal Government later excised and released to the appellants’ community. And since the respondent’s was contending that the land in dispute is part of their Etab Ayip village, the duty of the lower Court was to determine who has established a better title.

Learned counsel for the appellants contended further that the respondent at paragraphs 3 and 9 of the statement of claim relied on traditional history to wit, that his ancestor called Kasuk founded and first settled on the land in dispute and as a result, the respondents’ community possessed the land from time immemorial, exercising acts of ownership and possession thereon. The fact that the said assertion was denied by the appellants, the respondent has a duty to plead and prove the following:-
(a) The person who found the land,
(b) How was the land found, and
(c) The persons on whom the land devolved from its founder to the respondent.

Counsel cited AWODI V. AJAGBE (2015) 3 NWLR (prt 1447) 578 at 613, ORLU V. ONYEKA (2018)3 NWLR (prt 1607) 467 at 493 and AKINORINOLA V. AKINTEWE (2003) FWLR (prt 160) 1602 at 1620 in submitting that the respondent only succeeded in pleading that the disputed land was founded by Kasuk through first settlement without pleading and proving the names of the person on whom the land devolved from Kasuk down to the respondent and thereby leaving gaps in the traditional history.

Counsel submitted that since the foundation of the acts of ownership and possession of the land is the first settlement and founding of the land by Kasuk and where the respondent failed in his traditional history, the foundation of the acts of ownership and possession has collapsed. Thus, the respondent cannot fall back to acts of ownership and possession where there is a yawning gap in the traditional history. He relied on the case of OWHONDA V. EKPECHI (2003) FWLR (prt. 181) 1565 at 1578. EZUKWU V. UKACHUKWU (2004)17 NWLR (prt 902) 227 at 252 and AJALA V. OKOGBUE (2011) 16 NWLR (prt 1272) 62 at 77.

He further submitted that for the respondent to find his way back to the acquired land, and start claiming act of ownership, long possession and use of the land, is tantamount to standing the law on its head. Counsel cited THE DIOCESE OF ABA V. NKUME (2002)1 NWLR (prt 749) 726 at 788.

Responding to the above, learned counsel for the respondent contended that the claims for the respondent was for trespass wherein he relied on acts of possessions and ownership to prove his title and even if the respondent had successfully pleaded and proved evidence of traditional history, the trial Court could not have compelled the respondent to rely on it if the respondent expressly opted not to rely on it as Courts do not make cases for the parties. He submitted that where the title of both parties is defective, the Court can still find for the plaintiff in an action for trespass if he establishes possession. He referred to EKRETSU V. OYOBEBERE (1992) 9 NWLR (prt 266) 438 at 461 and MKPINANG V. NDEM (2012) NSCQR 146 at 158 to the effect that the trial Court was right to revert and relied on his acts of possession and ownership by the parties before it to resolve the issue of title to the land in dispute between the two parties.

The appellants’ main contention here is that the trial Court was making a case for the plaintiff (now respondent) from the case he made for himself at the trial. Specifically, the appellants’ argument was that the respondent had deviated from his pleaded root of title and that the lower Court was in error to have granted the respondent’s reliefs where the title pleaded has not been proved. It is a basic principle of law that in a claim for declaration of title to land, the onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to the declaration sought. Thus, the plaintiff must rely on the strength of his own case and not on the weakness of the defence. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment will be for the dismissal of the plaintiff’s case. See KODILINYE V. MBANEFO ODU B. 2 W.A.C.A. 336 at 337, FREMPONG V. BREMPONG 14 W.A.C.A. 13, WOLUCHEM V. GUDI (1981) 5 SC 291 and ODUARAN V. ASARAH (1972) 1 ALL NLR (prt 2) 137.

The respondent as claimant at the lower Court claimed trespass, damages for trespass and injunction against the appellants. In paragraphs 3 and 9 of the statement of claim, he averred as follows:-
3. The claimant pleads that the land founded and possessed by his forefathers known as Kasuk and split into Kasuk Qua clans 1 and 2 have not moved from its original place and historical happening affecting.
9. The claimant pleads specifically that his ancestor who settled and found Ikot Akasuk which has metamorphosed into Kasuk 1 and 2 clans today is one Kasuk and he possessed the entire area of land after Ikot Omin ending at Akim.”

It is very clear from the above that the claimants’ root of title is predicated on traditional history and the law is settled that evidence of traditional history where it is not contradicted or is in conflict and if found by the Court to be cogent can support a claim for declaration of title to land. See IDUNDUN V. OKUMAGBA (1976) 9 – 10 S.C. 227.

In the present case, the traditional history relied upon by the claimant as the basis for his ownership was vehemently denied and hotly contested by the defendants at the lower Court. The learned trial judge after a careful consideration of the evidence of the claimant held the view that the claimant did not rely on traditional history and that even if he did rely on traditional history and it fails, he can turn around to rely on the act of ownership and possession in proof of his claim to title. At pages 965 – 966 of the record of appeal, learned trial judge held inter alia thus:-
“I am of the view that the prerogative to choose or elect the means through which a claimant proves his title to a land in dispute is solely that of the claimant. And in this case, the claimant has chosen to establish his title to and ownership of the land through –
1. Numerous acts of ownership over a long period of time.
2. Acts of long possession and enjoyment of the land in dispute and
3. Possession of connected or adjacent land.
Therefore, I find it difficult to agree with the learned defence counsel that the claimant elected to prove his title to land by only one means, namely; “traditional history” and having not mentioned; (i) the person who found the land, (ii) how the land was found and (iii) how the land devolved from its founder to the claimant, etc., he has therefore failed to prove his title to the land in dispute.
The point must be made here that while these conditions are good law, they are only applicable to the party solely relying on traditional history to prove his title but in this case, where the claimant vehemently denies relying on traditional history and unequivocally and openly places his reliance on other means of proving title to the land in dispute which means are provided for and recognized by and has gone further to plead same and tendered many exhibits in support thereof, including Exhibit 48, 48a, 48b, 48c and 48d; Exhibits 14, 18, 42 and 43 etc. It would be very unjust to shut him out of the case.
For the purpose of this judgment, the point should further be made that, assuming in the eyes of counsel for the defendants, the claimant pleaded and relied on traditional history to prove his title to the land but failed to do so, the law is that he can still be allowed to prove his title or ownership to the land in dispute through other means pleaded, as parties may avail themselves of more than one means of prove of their title to land.

He continued at pages 966 – 969 that:
In paragraphs 6, 7, 8, and 26, of the statement of claim, the claimant pleaded and I quote thus:
Paragraph 26: “Claimant also pleads that in 1950 there was Suit No. 565/950 between Chief Ekong Edim Inok and 3 others V. Chief Bassey Edim of Ediba Town and 36 others, which was filed by and decided in favour of Kasuk to protect these swam plands. This suit went on appeal two times (in 1951 and 1952) but all the decisions were in favour of Kasuk.”
Paragraph 6(a): “When this new road known as Marian Road extension was to be built through the Kasuk swampland (Etab Ayip), the swamp land was already known by all as lying along M.C.C. Road, the Cross River State Government in acknowledgement of the fact that this area of land where the Marian Road extension was to be built belongs to Kasuk wrote a letter to the Kasuk community intimating of the intention to built the road through the land.”
The said letter dated 12th June, 2003 and signed by the State Surveyor General is hereby pleaded and will be relied upon at the trial.
Paragraph 7 (a): “Claimant pleads also Charge No. MC/191C/80 which is a charge brought against the claimant’s elder brother for destroying huts built by unknown persons on the said Kasuk swamp along M.C.C. Road near the present day Marian Road Extension/boulevard.
The proceeding and judgment in the said Charge No. MC/191C/80 is pleaded and shall be relied upon at the trial.”
Paragraph 8: “As at 1980, it is the claimant and his senior brother Patrick Edem Ayito who controlled and rented same to some of the said palm wine tappers like Mr. James Akpan of 119 MCC Road, M. Asuquo Udo of 77 Odukpani Road, Kasuk Qua Town, Calabar, Mr. Etim Okon and one Mr. Peter.
The claimant and his said senior brother planted more raffia/palm wine trees and removed dead ones and generally managed the swamp area until Etab Ayi Kasuk village was created out of the swamp land in 1996 and the claimant was made the village head thereof and receive his certificate of recognition in 2004.
Some copies of the receipts issued to these tappers in the 1980’s are hereby pleaded aznd will be founded upon at the trial.”
Similarly in the claimants’ reply to the statement of defence and counter claim, the claimant pleaded at paragraphs 25 and 27 as follows:
26 (iii) “The claimant pleads the judgment in suit No. C/53/85 which shows clearly that Iban Amanso purportedly released as parcel B to the defendants and admitted by the defendants to be a Kasuk village situates in the middle of the land acquired in 1977 (109.70 hectares). The 1977 acquisition notice had described clearly that the land so acquired by the notice situates along M.C.C. Road. This Iban Amanso is a gazette Kasuk village.”
27. “The claimant states that it only pleaded the location of the land/villages acquired in 1977 which lies in proximity with the land in dispute and the other Kasuk villages to show that all these area/lands/communities and the land in dispute are Kasuk communities. Therefore Etab Ayip swamp lying along the same M.C.C Road, that is, the right hand side of Ndidem Usang Iso road and surrounded by other Kasuk lands cannot belong to Ikot Ansa but Kasuk.
All the villages/lands situate in-between M.C.C. Road and Ndidem Usang Iso Road Extension and the area of land in dispute, in this case stretching to Idundu Bridge are duly gazette Kasuk villages.”
In view of the above pleadings; I hold that the claimant is relying on
(i) Proof of acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land.
(ii) Acts of long possession and enjoyment of the land.
(iii) Proof of possession of adjacent land in dispute in such circumstances which render it probable that the owner of the adjacent land is the owner of the land in dispute.

It has long been established that a party may prove his title to land either
(a) By traditional history or evidence,
(b) By documents of title duly executed and authenticated,
(c) By various acts of ownership numerous and positive extending over a length of time as to warrant the inference of ownership,
(d) By acts of long enjoyment and possession of the land or
(e) By proof of possession of adjacent land in circumstances which renders it probable that the owner of such adjacent land would in addition be the owner of the land in dispute.
It is also settled based on plethora of judicial decisions that a party seeking a declaration of title to land is not bound to plead and prove more than one root of title to succeed but he is entitled to rely on more than one root of title. However, where he relies on traditional history and in addition acts of ownership and long possession predicated on the traditional history as pleaded, he is not entitled to a declaration of title based on the evidence of acts of ownership and long possession where the evidence of tradition history is unavailable. See BALOGUN V. AKANJI (1988)1 NWLR (prt 70) 301 at 232, ERONINI V. IHEUKO (1989) 3 SC. (prt 1) 30 and EZUKWU V. UKACHUKWU (2004) 7 S.C. (prt 1) 96 at 107 -108. In REGD. TRUSTEES, DIOCESE OF ABA V. NKUME also reported in (2002)1 SC 19 at 28, the Supreme Court has re-affirmed the legal position that where title pleaded has not been proved, then it will be unnecessary to consider acts of possession for the acts then become no longer acts of possession but acts of trespass.
I had earlier stated that the evidence of the respondent as well as the findings of the lower Court is at complete variance and did not support his pleaded root of title. While the respondent predicated his title on traditional evidence, judgment was entered in his favour based on acts of ownership and possession. For the claimant to succeed in his claim of title, he must establish proof of the root of title pleaded and claimed. This he failed to do. It is therefore my humble view that the burden on the claimant in proof of his claim for title to the land in dispute was not discharged and the proper judgment in the circumstance would have been the one of dismissal of his claim in respect of the title to the land in dispute. He cannot fall back on long possession and ownership to prove title. He must first prove a valid root of title to be able to claim title on acts of ownership or long possession. I therefore resolved issue 1 in favour of the appellants.

ISSUE NO.2
The appellants’ contention with regard to this issue is that vide Exhibits 8 and 21 which are the same documents the area of land released to them through the Deed of Release between the Federal Government and the appellants does not cover Etab Ayip village and so also the Etab Ayip village was not among the communities from which the two acquisitions of 1972 and 1977 were made. Counsel submitted that even if Etab Ayip village were to be part of the land acquired by the Federal Government in 1972 and 1977, the subsequent release to the appellants as per Exhibits 8 and 21, the respondents’ community’s ownership had extinguished with the acquisition and a new root of title created and vested in the appellants to whom the grant has been made. He referred to SOBANDE V. IGBOEKWE (2016) LPELR – 40321 (CA) and AKINBOYE V. ADEKO (2011) 6 NWLR (prt 1244) 415 at 448.

Still in contention, the appellants have submitted that the respondent did not prove or demonstrate by evidence how the appellants exceeded the area released to them and therefore, the area released to them cannot be in dispute. Learned counsel faulted all the ten findings of the lower Court in respect of the respondents’ acts of possession and ownership in contending that same should not have warranted the declaration of the appellants as trespassers and the award of damages made against them for the alleged trespass. He submitted that having denied the respondents’ claim and maintaining that the land in dispute is not situate at Etab Ayip village and that Etab Ayip village of Kasuk II Qua Clan is situate about 6 kilometers on the East of Ndidem Usang Iso Road Extension, it cast a burden on him to prove that the land in dispute is situate within the gazetted village of Etab Ayip. And since the respondent as claimant has failed to prove that the land in dispute is situate in Etab Ayip village, the decision of the lower Court that the respondents’ Etab Ayip village owns the land in dispute is perverse. He cited IWUOHA V. NIPOST (2003)8 NWLR (prt 822) 308 at 345.

Counsel submitted further that after the release of the land in dispute to the appellants, the Government, both at the state and Federal levels related with them with regards to the land in dispute as evidence in Exhibits 38, 39, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, and 64 as well as Exhibit 33, 34, 35, 36 and 37 and despite all these exhibits, the learned trial judge failed to place them side by side with the documents of the respondent to evaluate them on the imaginary scale of justice to know which side the scale of justice tilts. Had the trial judge properly evaluated the evidence adduced before him, he would not have declared the appellants as trespasser on their own land not to talk of awarding One Hundred Million Naira costs as damages for trespass against them.

The respondent on the other hand referred to paragraphs 16, 17 and 18 of the statement of claim in contending that he has pleaded and tendered documentary Exhibits showing that the area of his communal land in dispute is contained in two survey plans No. EKA/CS/CR/788/2011 consisting of 78 hectares and plan No. EKA/CS/CR/4619/2022 consisting of 240 hectares Exhibit 6 and 7. And that unknown to the respondent’s Kasuk community there was a purported release to the appellants of certain respondents’ Kasuk community land earlier acquired from Kasuk community in 1977 adjourning the land in dispute vide a survey plan No. CA/C/928, Exhibit 9. Still in contention, respondent argued that the appellants have crossed over from the purported released land into the respondent’s land known as Etab Ayip Kasuk captured in Exhibits 6 and 7 in the sense that the appellants entered that overlapped portion and sold the land and excavated laterite therein and destroyed thousand of palm trees situate thereon. The composite plans showing the area of the respondent land overlapped by the appellants is Exhibit 15 and thus the trial Court was right to have declared the appellants as trespasser.

To prove that the respondents’ community own the land in dispute, learned counsel submitted that the respondent had presented evidence showing that the adjoining lands to the land in dispute are originally owned by his Kasuk community, that same were acquired from and compensation thereof paid to his Kasuk community relying on the testimonies of CW1 and CW2 respectively at paragraphs 16 and 23 of their respective statements on oath as well as Exhibit 18. He contended that the evidence of CW2 also shows that he took action to protect the swampland which resulted in his being charged in an action in Suit No. MC/191C/1979, Exhibit 4.

In their reply brief, the appellants argued that Exhibit 9 and 15 were not accompanied to show whether there was an overlap and that they remained on the area released to them. And that the burden of proving overlap is on the respondent as claimant and counsel cited OMISORE V. AREGBESOLA (2015) ALL FWLR (prt 813) 1673 to the effect that the burden of proving a fact rest on the party who asserts the affirmative of the issue and not the party who denies it for a negative is usually incapable of proof.

It is pertinent to point out that the respondent’s claim before the trial Court was that the appellants herein had cross over from and beyond the area of land purportedly released to them by Exhibits 8 and 21 (Deed of Release). Thus, the need for credible evidence showing clearly that the appellants are operating outside the area released to them. The question is, did the respondent lead evidence showing clearly the area released to the appellants as well as the portion allegedly crossed over? Before examining the evidence adduced in proof of that assertion and the evaluation of same by the trial Court, let me state that when land is compulsorily acquired, the title on the land so acquired become extinguished by reason of the acquisition. See Section 28 Subsection (7) of the Land Use Act, Cap L 5 Laws of the Federation of Nigeria 2004. Where a portion of the acquired land was returned to the previous owner, a new root of title by grant was created by the Government which means the new root of title over the released land vide Exhibits 8 and 21 has been returned to the appellants.

As stated elsewhere in this judgment that the respondent rather than showing by way of plan, the entire land of Etab Ayip village which should include the area released to the appellants through Exhibits 8 and 21 and also indicating the area allegedly encroached by the appellants, he heavily relied on acts of possession and ownership which are itemized at pages 953 – 954 of the record of appeal.

Let me also digress a little to say that possession is a word of wide and sometimes vague and unambiguous import. It may mean effective, physical or manual control or occupation of land – de facto possession – as well as possession animus possessendi together with that amount of occupation or control of the land which is sufficient to exclude other persons from interfering the de jure possession. This means that although legal possession is ordinarily associated with de facto possession but is not limited to it; legal possession may not always amount to possession and the latter may not always amount to possession in law. In other words, legal possession includes constructive possession.

Be that as it may, the learned trial judge found inter alia that since compensation for the acquisition of the land was paid to the claimant’s community as shown in the reversed cheque of 30/7/2007, the land in dispute is within Etab Ayip Kasuk village which is legally and statutorily in its possession and control. For effect, the excerpts of the learned trial judge’s findings are at pages 985 – 986 of the record of appeal as follows:-
“Having read the pleadings of the parties, heard the testimonies of the witnesses, perused the exhibits tendered, listened to the arguments conversed and read the authorities cited therein.
1. I find as per exhibit 18, that the cheque (including the reverse side) for the compensation for the land acquired via exhibit 2 in 1977 was paid to Kasuk community.
2. I find that by virtue of the Traditional Rulers Law of Cross River State, that the villages/communities mentioned in the notice of acquisition published in the Cross River State Gazette No. 9 of volume 10 of 17th February, 1977 are all Kasuk group of villages/communities as at 1976, 1977 and even 1978.
3. Interestingly, the same counsel engaged by the defendants to collect the compensation for the acquisition of 1972 was also engaged by the claimant to collect the compensation for the acquisition of 1977. The same counsel remitted their respective compensation differently.
4. That during cross examination of D.W.1, on 24th October, 2018: SW1 admitted under Oath that the community that owns the land that was acquired in 1977 are also the owners of the land in dispute and also that 1977 acquisition is contained in exhibit 2.
5. I find that the claimant’s community has been in possession of the land in dispute and the adjoining land thereof, they have taken various Court actions to defend and protect the land in dispute including the adjoining lands since 1951. See exhibits 4, 14 and 41.
6. I find per exhibits 66, 67 and 40 that the defendants counter claim is an abuse of Court process.

Learned counsel for the appellants submitted that the above findings are perverse firstly because the new root of title to the land in dispute is vested on the appellants vide Exhibits 8, 9 and 21 and secondly, the trial judge had failed to place their documentary evidence side by side with the document of the respondent to evaluate them on the imaginary scale of justice in order to ascertain on which side the scale of justice tilts.

The respondent relied on traditional history in proof of his title to the land in dispute but failed to establish his entitlement through the traditional evidence and thereafter relied on long possession and ownership of the adjoining land which was hotly contested but the trial Court believed in his documentary evidence without evaluating the appellants’ documents in reaching a decision. For instance, the appellant tendered Exhibits 9 and 21 to show that the deed of release extinguished the previous title and created a new root of title to the land in dispute on the appellants. Appellants also tendered Exhibits 38, 39, 54, 55, 55(a), 56, 57, 58, 59, 60, 61, 62, 63 and 64 as well as Exhibits 33, 34, 35, 36 and 37 to show that after the release of the land in dispute, they had dealings both with the state and Federal Government Agencies with regards to the land in dispute including the acquisition of a portion for special developments such as dualization of the Ndidem Usang Iso Road project and approval of layout of Agbor Ntoe Nkonib (Ikot Ansa) Qua clan and Etang Ahe Nkonib (Ikot Ansa) Qua clan.

I have recasted the evidence adduced before the trial judge and so also reproduced the excerpt of the learned trial judge’s findings which essentially dwelled on the respondent’s documentary evidence. Had the learned trial judge placed the appellants’ documentary evidence side by side with that of the respondent he would have arrived at the conclusion that the respondent did not proved a better title particularly when considering the fact that the acquisitions of the land in 1972 and 1977 has automatically extinguished the existing rights and also the subsequent release through Exhibits 8, 9 and 21 created a new root of title. I fully subscribe to the view that had the learned trial put the competing evidence on the imaginary scale of justice, he would have no basis awarding damages in favour of the respondent. Issue 2 is also resolved in favour of the appellants.

ISSUE 3
The appellants specifically referred to the evidence of the respondent through CW1 and CW2 to contend that inspite of the fact that neither the first nor the second acquisition was made from the respondents’ community, Etab Ayip village of Kasuk II Qua Clan, yet the learned trial judge held that the land in dispute belongs to him and granted him ownership and damages thereof. Counsel referred to Exhibit 21 to show that parcel A from the first acquisition of 1972 which is 146 hectares released to the appellants is part of the land in dispute and that same was admitted by the respondent in paragraphs 18 and 33 of his reply to the statement of defence. He cited JUSTICE PARTY V INEC (2006) ALL FWLR (prt 339) 907 and ALI V UBA (2014) LPELR – 22635 (CA) to the effect that an admission by a party against his interest is the best evidence of his adversaries in any suit.

In further contention, appellants argued that the entity usually known as Kasuk, no longer exist in law from 1996 when it was created into two clans that is, the old Kasuk Qua clan which is now Kasuk I Qua clan and Kasuk II Qua clan under the headship, control and administration of different people but the learned trial judge treated them as if they are the same village and clan under the control of the respondent. Had the learned trial judge made findings as to the current status of these communities, he would have arrived at the conclusion that the communities have not all been one and under the control of Kasuk even as at 1976 to 1978. Counsel cited Ishie clan with her group of villages in the schedule to the Cross River State (clans creation) Edict No. 1 of 1996). Thus, with the creation of clans, Ikot Effa and Ikot Uduak communities from where the 1977 acquisition was made are not villages or communities under the control of the respondent. Counsel submitted that the findings of the learned trial judge was neither in accord with the Traditional Rulers Law of Cross River State and clans creation Edict No.1 of 1996, nor in harmony with the decision of Kooffreh J. in Suit No. HC/430/2012.

On the part of the respondent, it was contended that no part of the entire parcel of land released to the appellants by the Nigerian Army as contained in Survey Plan No. CR/C.928 admitted as Exhibit 9 containing 146 hectares and 104 hectares was touched by the judgment of the trial Court but on the respondents’ land crossed over from the land released outside Exhibit 9. Counsel submitted that the respondent has at no point in time admitted that part of the land in dispute which is contained in Exhibits 6 and 7 belong to any other person than the respondent.

I have elsewhere restated the law that where there is a claim for trespass and injunction as in the instant case, title to the land involved is put in issue and thereby making it incumbent on the trial judge to consider the issue of title to the land or exclusive possession to it. And that before a declaration of title is given, the land in dispute must be ascertained with certainty. In the case at hand, the respondents’ claim was that the appellants have exceeded the land released to them by the Nigerian Army and thereby crossed over into the respondents’ land. The appellants on their part maintained that they have not gone an inch beyond the area of land released to them vide Exhibit 21. Thus, the identity of the land in dispute must be ascertained with certainty. In paragraphs 18 and 33 of the reply to statement of defence and defence to counter-claim, the respondent averred that:-
18. In response to paragraph 18 of the statement of defence, the claimant replies as follows:-
i. The defendants have admitted that there is Suit No. FHC/CA/CS/09/2007 pending in Court against them over their claim to have been granted the area acquired in 1977 for the extension of Eburutu Barracks.
ii. The area of land purportedly released by the Nigerian Army in the purported Deed of Release to the defendant is clearly stated in the said Deed of Release PARCEL B (104-035 as hectares) as shown in the composite plan attached to the said Deed of Release (No.2 PARCEL A).
ii. DECIETFULLY, the defendants pleaded a composite plan containing certain areas named parcel A and parcel B but neglected to plead the instrument (DEED OF RELEASE) which describes the area released to the defendants. Is it the plan that gives them title or deed of Release? Then why refuse to plead the document giving title for the Court to see which A PARCEL OF land the Deed has vested on the defendants.
33. In response to paragraph 7 of the counter-claim, the claimant states that the 1972 acquisition is not in dispute between the parties and emphasizes that the defendant had tried its best to mix up and confuse the Court between the 1972 acquisition and the distinct acquisition of 1977 which acquired land belonging to Kasuk tenant communities along M.C.C. Road. The compensation for the 1972 acquisition was paid to Ikot Ansa but the 1977 compensation was handled over to Kasuk and not Ikot Ansa. The same layer (Ironbar) was used in the two transaction.

Let me repeat for the umpteenth time that a party who claims title to land must prove his mode of acquisition of that title, and if this fails that is the end of the matter for it is not for the claimant to turn around and rely instead of act of possession not pleaded in the claim. In other words, it is not permissible to substitute a pleaded particular root of title that has failed with other matters such as acts of possession, numerous and positive to warrant the inference of the ownership not pleaded as root of title. See UDE V CHIMBO (1998) 10 SC 97 at 114 – 115.

I have already held the view that the claimant relies on traditional history and in addition acts of ownership and long possession based on the traditional history as pleaded; he is not entitled to a declaration of title based on the evidence of acts of ownership and long possession where the evidence of traditional history is unavailable. Also by the combined effect of Exhibits 8, 9 and 21, a new root of title was created and vested unto the appellants over the land released by the Nigerian Army. The question as to whether compensation for the acquisition of 1977 was given to particular community does not arise as the previous ownership of the land in dispute was extinguished by the acquisition pursuant to Section 28 subsection (7) of the Land Use Act. Consequently, the finding of the trial Court which based ownership of the land acquired in 1977 on the respondent on the basis of compensation paid to his community is not in tune with the law. It is also clear from the schedule to the Cross River State (Clan creation) Edict No. 1 of 1996, the entity hitherto known as Kasuk was broken into two and the action given rise to this appeal was instituted by the respondent for himself, Etab Ayip village and on behalf of the entire Kasuk Qua Clan II, Calabar which means that the parcel of land the respondent claimed including of the adjoining ones are no longer part of his domain. The failure of the learned trial judge to make a clear distinction between the areas contained in the first and second acquisitions, no doubt amounts to failure of justice. Issue 3 is also resolved in favour of the appellants.

ISSUE NO.4
The complaints of the appellant on this issue are of two folds, the first being giving judgment in favour of the respondent at the interlocutory stage even before analyzing the case by the learned trial judge and thereby making up his mind right from the onset. Counsel referred to the excerpt of the judgment at page 10 – 11 lines 23 – 25 and pages 95 line 25 wherein His lordship decided thus:
“The claimant’s acts of possession and ownership which relied upon to establish his ownership of the land in dispute are numerous expanding over a sufficient length of time.
The summary of such acts of possession and ownership disclosed in the pleadings include the following…”

He contended that it was after giving justification for the judgment given in favour of the claimant/respondent that he set down the summary of the case for the appellants herein. Counsel submitted that an appraisal of the claimant’s case and evidence led were not done even at the stage he gave his judgment and thus the premature nature of the judgment renders its fairness to become questionable.

The second arm of the appellants’ complaints deals with the learned trial judge’s declaration of the counter-claim of the appellants as constituting an abuse of Court process. Counsel referred to paragraphs 3, 4, and 6 of the reliefs claimed by the respondents herein as claimant in Suit No. HC/128/2016 the judgment of which is now on appeal, Exhibit 52 as well the brief of the appellants herein as the 5th – 6th respondents, Exhibit 66. He queried how the respondent’s reliefs that were dismissed in Suit No. HC/128/2016, Exhibit 52 will be potent before the learned trial judge so as to render the appellants’ counter-claim an abuse of Court process especially when the appellants herein were not the claimants in that suit. He further contended that suit No. HC/128/2016 was not pending at the trial Court as at the time this suit was instituted. And that it was the respondent herein who was the claimant in both cases. Counsel queried further that how then the virus that rendered the appellants counter claims an abuse did not affect the substantive claim of the respondent who was the claimant? He submitted that to constitute an abuse of Court process there must be a multiplicity of actions on the same subject matter by the same parties relying on KOTOYE V SARAKI (1992) 9 NWLR (prt 264) 156 at 188 – 190.

Responding to the above issue, the respondent contended that the actual findings in the judgment now on appeal were made upon a careful consideration of the respective cases for parties before declaring the reliefs. Counsel conceded that the remark made by the learned trial though premature but same is a mere technicality that cannot occasion a miscarriage of justice. He referred to M.D.P.D.T. V OKONKWO (2001) 7 NWLR (prt 711) 608 and ONATABI V OLANIPEKUN (1985) 4 NWLR (prt 2)156.

With the respect to the striking out of the appellants’ counter claim, the respondent contended that the appellants’ counter-claim was against the respondent’s ownership of the land contained in Survey Plan No. CR/C.928 pursuant to the Deed of Release and the purported release is also the subject matter of appeal NO CA/C/245/2006. Thus, the learned trial Court was right in striking out the counter-claim as an abuse of Court process.

The appellants’ main complaint against the judgment on this issue is that same was prematurely determined by the trial Court. Parties are in agreement with each other that the learned trial judge’s comments before analyzing the evidence is detestable but the contention of the respondent is that same did not occasion a miscarriage of justice.

The next germane issue relates to the striking out of the appellants’ counter claim on the ground that it constitutes an abuse of Court process.

The concept of abuse of Court process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. The abuse of the process may be in both a proper or improper use of judicial process in litigation. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. Thus, the abuse lies in the multiplicity and the manner of the exercise of the right rather than the exercise of the right per se. See SARAKI V. KOTOYE (supra), CBN V. AHMED (2001) 11 NWLR (prt 724) 369, DINGYADI V. INEC (2011) 10 NWLR (prt 1255) 347 and DENTON WEST V. JACK (2013) 15 NWLR (prt 1377) 205. Also in P.M.L. (NIG) LTD V. F.R.N. (2017) LPELR 43480 (SC) AUGIE, JSC at page 58 paras B – D said:-
“The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly by civil or criminal, for a purpose and to obtain a result not lawfully warranted or properly attainable thereby.”
In the instant case, the issue of abuse of process was raised by the respondent in his final address wherein the appellants reacted and the learned trial judge found at page 976 of the record of appeal thus:-
“It is instructive to note that exhibits 8 and 21 are the Deed of Release by the Nigerian Army dated 29th September, 2006 (29/9/2006) granting the parcel of land referred to as parcel A and B to the defendant (according to them), while exhibit 9 is Survey Plan NO CR/9/928 dated 06/08/2009 attached to the deed, delineating the land referred to as parcel A and B.
It is clear that the issue and the counter claim in this case are the same as the ones in paragraphs 3, 4, and 6, of the reliefs in Suit No HC/128/2016 (currently on appeal). Hence, I find and hold that the sub issue raised by the learned counsel for the defendants counter-claimants and the counter claim thereof is an abuse of Court process…”
It is pertinent to note here that the claims of the respondent as claimant in suit No HC/128/2016 was dismissed. I therefore agree with the submission of the learned counsel for the appellants that having dismissed the respondent’s claim in Suit NO HC/128/2016, it has no potency of dislodging the appellants counter claim. A judgment of the Court which has not been set aside remains rock solid. Also worthy of note is the fact that the respondent herein was the claimant in both the two cases and one wonders how the learned trial judge did not declare the respondent’s claim to be an abuse but went ahead to declare the counter-claim so.
There is no hard and fast rule in determining the absence or presence of abuse of judicial process in any action because of its slastic nature. Therefore, a Court is enjoined to examine each case, predicated on its facts, and circumstances, in order to ascertain if it showcases an abuse of Court process or not. In other words, the factual antecedents of each case has to be married with the negative elements of abuse of Court process. SeeIDRIS V. AGUMAGU (2015) 13 NWLR (prt 1477) 441 at 479.
Having justaposed the above parameters to the facts and circumstances of this case, the appellants’ counter-claim does not constitutes an abuse of judicial process and the learned trial judge was clearly in error when he held otherwise. This issue is resolved in favour of the appellants.

On the whole, the respondent has failed to prove his root of title on traditional history earlier pleaded and cannot fall back to claim title to the land in dispute on the basis of act of ownership and long possession. Similarly, by the operation of the law, the incidents of the acquisition of the land has automatically extinguished the hitherto title held in respect of the acquired land. Subsequently, the released of the portions of the land in dispute vide Exhibit 8 and 21 created a new root of title, vested on the appellants as described in the deed of release. Finally, the appellants’ counter claim as contained at pages 501 – 502 of the record of appeal was wrongly struck out by the learned trial judge.

In the result, the appeal succeeds and it is hereby allowed. The judgment of the lower Court delivered on the 21/02/2019 is hereby set aside. I make no order as to costs.
Appeal allowed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have read in draft the leading judgment of my learned brother, MUHAMMED LAWAL SHUAIBU, JCA, just delivered.
I also endorse the reasoning and conclusion arrived at in the determination of the appeal.
I also agree that the appeal is meritorious and is accordingly allowed.
I abide with the consequential orders contained in the leading judgment.

HAMMA AKAWU BARKA, J.C.A.: My Learned brother, Muhammed L. Shuaibu, JCA, graciously made available to me a copy of the judgment just delivered in draft.
I agree with the reasoning and the conclusion reached. I also see merit in the appeal and consequently allow the same.
The judgment of Imelda B. Etape J. delivered on the 21st day of February, 2019 is hereby set aside. I make no order as to costs.

Appearances:

MBA E. UKWENI, SAN, with him, F. N. …For Appellant(s)

ORCHARDSON UMOH For Respondent(s)