UNIVERSITY OF CALABAR & ORS v. MURI OKON ETIM EFFIONG & ORS
(2019)LCN/13509(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of June, 2019
CA/C/293/2015
RATIO
APPEAL: DOCUMENTARY EVIDENCE AT THE LOWER COURT FORM AN INTEGRAL PART IN AN APPEAL
An indepth study of the issues, amply, discloses that documentary evidence, furnished before the lower Court, form an integral part of the casus belli in this appeal. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487.PER OBANDE FESTUS OGBUINYA, J.C.A.
LAND LAW: POSSESSION: DEFINITION UNDER LAND LAW
To begin with, possession connotes the exercise of dominion over property, real or chattel, and the right under which one may exercise control over something to the exclusion of others. It signifies an occupation or physical control of a parcel of land either personally or through an agent or servant, see NITEL Plc. v. Rockonoh Prop. Co. Ltd. (1995) 2 NWLR (Pt. 378) 473; Oke v. Oke (2006) 17 NWLR (Pt. 1008) 224; Okegbemi v. Akintola (2008) 4 NWLR (Pt. 1076) 53.PER OBANDE FESTUS OGBUINYA, J.C.A.
TRESPASS: WHETHER A PERSON IN POSSESSION CAN SUE IN TRESPASS
It has been described as nine-tenth of the law. A person in effective possession of land can sue anybody in the world for trespass except his lawful tenant or lessee. In Anyabunsi v. Ugwunze (1995) 6 NWLR (Pt. 401) 255 at 268, Iguh, JSC, incisively, opined:
A landlord who collects rents from his tenants in respect of his piece or parcel of land is clearly of de jure; possession of such land even though he is not in physical occupation or de facto possession thereof.
See also Udeze v. Chidebe (1990) 1 NSCC 114/(1990) 1 NWLR (Pt. 125) 141/(1990)/SCNJ 104; Tanko v. Echendu (2010) 18 NWLR (Pt. 1224) 253; Onwubuariri v. Igboasoiyi (2011) 3 NWLR (Pt. 1234) 357; Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391; Ehwrudje v Warri L. G. (2016) NWLR (Pt. 1520) 337.PER OBANDE FESTUS OGBUINYA, J.C.A.
LAND LAW: WHAT HAPPENS WHEN A PERSON ALIENATES HIS STATUTORY RIGHT OF OCCUPANCY WITHOUT THE GOVERNORS CONSENT
These provisions, which harbour no ambiguity, have fallen for interpretation before the Courts. They have been construed to mean that any transaction or instrument by which a holder of a statutory right of occupancy, granted by the governor, alienates his right of occupancy or any part of it, without the governor?s consent, is null and void, see Savannah Bank Ltd. v. Ajilo (1989) 1 NWLR (Pt. 97) 305/(1989) 1 NSCC, vol. 20, 135; Awojugbagbe Light Ind. Ltd. v. Chinukwe (1995) 4 NWLR (Pt. 390) 379; Owoniboys Technical Services Ltd. v. U.B.N. Ltd. (2003) 15 NWLR (Pt. 844) 238; C.C.C.T.C.S. Ltd. v. Ekpo (2008) 6 NWLR (Pt. 1083) 362; Olalomi Ind. Ltd. v. N.I.D.B. Ltd. (2009) 16 NWLR (Pt. 1167) 266; U.B.N. Plc. v. Ayodare & Sons (Nig.) Ltd. (2007) 13 NWLR (Pt. 1052) 567; Yaro v. Arewa Const. Ltd. (2007) 17 NWLR (Pt. 1063) 333; A.D.H. Ltd v. Min., F.C.T (2013) 8 NWLR (Pt. 1357) 493; Mbanefo v. Agbu (2014) 6 NWLR (Pt. 1403) 238; Bulet Int?l (Nig.) Ltd. v. Olaniyi (2017) 17 NWLR (Pt. 1594) 260.PER OBANDE FESTUS OGBUINYA, J.C.A.
WHAT A PLAINTIFF IS REQUIRED TO DO WHEN A DEFENDNAT RAISES NEW ISSUES IN HIS STATEMENT OF DEFENSE
In the province of adjectival law, where a defendant raises new issues in a statement of defence, a plaintiff is required to file a reply in response to the fresh issues. The converse is true, id est, it is unnecessary in the absence of new issues. Where the defendant neglects to do so, the failure is deemed as an admission. Thus, the primary function of a reply is to counter new points emanating from a statement of defence, see Egesimba v. Onuzuruike (2002) 15 NWLR (Pt. 791) 466; Olubodun v. Lawal (2008) 17 NWLR (Pt. 1115) 1; A.-G., Abia State v. A.-G., Fed. (2005) 12 NWLR (Pt. 940) 940; Phillips v. E.O.C. & Ind. Co. Ltd. (2013) NWLR (Pt. 1336) 618; Mabamije v. Otto (2016) 13 NWLR (Pt. 1529) 171.PER OBANDE FESTUS OGBUINYA, J.C.A.
COURTS :POWER OF THE COURT: POWER OR RIGHT OF THE COURT TO PRESUME THAT A PARTY WHO DOES NOT PRODUCE EVIDENCE HAS THAT EVIDENCE AGAINST HIM
The law allots to the Court the power/right to presume that where a party who ought to produce evidence fails to do so, the evidence is presumed to be unfavourable to him, see A.-G., Adamawa State v. Ware (2006) 4 NWLR (Pt. 970) 399; Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173; Aremu v. Adetoro (2007) 16 NWLR (Pt. 1060) 244; S.S.GMBH v. T.D. Ind. Ltd (2010) 11 NWLR (Pt. 1206) 589; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124. PER OBANDE FESTUS OGBUINYA, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
1. UNIVERSITY OF CALABAR
2. MICHAEL AKPAMBANG
3. MONDAY JOHNSON AKPAN – Appellant(s)
AND
1. MURI OKON ETIM EFFIONG
2. MURI FRANCIS EFA BASSEY
3. NDABU GODWIN BASSEY
(For themselves and on behalf of Efut Abua Ekondo Combined Council)
4. MR. ADEDOLA JOSIAH ABOBARE
5. MR. SAM EWA EWA
6. MADAM HANNAH ENEYO TOM
7. MADAM ARIT EKPO ETIM
8. MR. MONDAY JIMMY UDOUDO
9. MR. DANIEL IKANA MOSONGO
10. EFFIONG SUNDAY NNAH
11. MR. SYLVANUS GEORGE PEPPLE – Respondent(s)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal probes into the correctness of the decision of the High Court of Cross River State, holden in Calabar (hereinafter addressed as the lower Court), coram judice: B. T. Ebuta, J., in Suit No. HC/278/2012, delivered on 3rd December, 2014. Before the lower Court, the appellants and the respondents were the defendants and the claimants respectively.
The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The people of Efut Abua Efut Ekondo communally own all the land along Archibong Ika Street and Palm Street Extension in Efut Abasi Uwanse and Efut Uwanse Clans in Calabar South Local Government Area of Cross River State. The land has clearly marked Boundary with that of the first appellant. Some years ago, the Efut Abua Efut Ekondo Combined Council leased some portions of that communal land, which is the land in dispute, to some more 200 tenants some of whom had developed their plots. The tenancy agreements were reduced into writing. The fourth ? eleventh respondents were some of those tenants of the
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Combined Council represented by the first ? third respondents. On 14th and 15th July, 2012, a team of the first appellant?s security staff, led by the second and third appellants as senior security staff, armed with clubs, axes and machetes, invaded the land in dispute and demolished several buildings, both completed and uncompleted, and ran away before the police arrival to the scene. The rampage and destruction occasioned severe losses to the respondents. Sequel to that, the respondents beseeched the lower Court, via a writ of summons filed on 27th July, 2012, and tabled against the appellants the following reliefs:
1. N20 million to the 1st to 3rd claimants as general damages for the trespass committed on 14th and 15th July, 2012 by the defendants, their agents, servants and privies on the 1st to 3rd claimants? land along Archibong Ika Street and Palm Street Extension, Calabar.
2. N40 million to the 4th claimant as general damages for the trespass committed by the defendants, their agents, servants and privies when they damaged the 4th claimant?s house at Archibong Ika Street, Calabar.
3. N20 million each to the 5th to
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10th claimants as general damages for the trespass committed by the defendants their agents, servants and privies when they damaged the 5th to 10th claimants? houses at Archibong Ika Street, Calabar.
4. N20 million to the 11th claimant as general damages for the trespass committed by the defendants, their agents, servants and privies when they damaged the 11th claimant?s house at Palm Street Extension, Calabar.
5. An order of perpetual injunction restraining the Defendants by themselves, their servants, agents or privies from committing further acts of trespass on the land and houses located on Archibong Ika Street and Palm Street Extension, Calabar and from interfering with the quiet possession and use of the land and houses along those streets by the claimants and their tenants.
In reaction, the appellants joined issue with the respondents and denied liability. In their statement of claim, the appellants asserted that the land in question was/is the property of the first appellant.
Following the rival claims and denials, the lower Court had a full-scale determination of the case. In proof of the case, the respondents
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fielded two witnesses, CW1 and CW2, and tendered eleven documentary evidence: Exhibits 1-11. The appellants called no witness, but rested their case on that of the respondent. At the closure of evidence, the parties, through their respective counsel, addressed the lower Court. In a considered judgment, delivered on 3rd December, 2014, found at pages 169-181 of the record, the lower Court granted the respondents? claims.
The appellants were dissatisfied with judgment. Hence, on 19th December, 2014, they lodged a 4-ground notice of appeal which is copied at pages 182-186 of the record. Subsequently, the appellants, with the leave of this Court, filed an 8-ground amended notice of appeal on 28th June, 2018 and deemed properly filed on 25th September, 2018 and prayed this Court as follows:
(A) AN ORDER allowing the appeal, setting aside the Judgment and Orders of the High Court of Cross River State, Calabar Division, delivered on the 3rd December, 2014, in Suit No. HC/278/2012, between Muri Okon Etim Effiong & 10 Ors vs. University of Calabar & 2 Ors by Honourable Justice B. T. Ebuta, and dismiss the Suit in its entirety.
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Thereafter, the parties filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 9th April, 2019.
During its hearing, learned counsel for the appellants, Joe Agi, SAN, adopted the amended appellants? brief of argument, filed on 26th September, 2018, and the appellants? reply brief, filed on 8th April, 2019 and deemed properly filed on 9th April, 2019, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondents, Essien H. Andrew, Esq, adopted the amended respondents? brief of argument, filed on 12th October, 2018, as forming his reactions against the appeal. He urged the Court to dismiss it.
In the amended appellants? brief of argument, learned counsel distilled five issues for determination to wit:
1. WHETHER THE 1ST TO 3RD RESPONDENTS WHO BY THEIR EVIDENCE DIVESTED THEMSELVES OF THE LAND IN DISPUTE TO THE 4TH TO 11 RESPONDENTS WHO HAVE TAKEN POSSESSION, BUILT ON THE LAND CAN SUE FOR TRESPASS AND BY THE FINDING OF THE TRIAL COURT THAT
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CLAIMANTS HAVE TITLE TO THE LAND AND EVEN ERECTED BUILDINGS THEREUPON, IT CAN BE SAID THAT THE 1ST TO 3RD RESPONDENTS DID NOT EVINCE AN INTENTION TO BE BOUND BY DEEDS BETWEEN THEM AND THE BUYERS.
2. WHETHER FROM THE STATE OF PLEADINGS THE RELIANCE ON SECTION 167(D) OF THE EVIDENCE ACT 2011 BY THE TRIAL COURT IN THE FACE OF SECTIONS 122, 123 AND 124 OF THE EVIDENCE ACT, 2011 AND ORDER 17 RULE 21(3) OF THE CROSS RIVER STATE HIGH COURT RULES, 2008 IS SUPPORTED BY LAW.
3. WHETHER IT IS RIGHT FOR THE LOWER COURT TO RE ADMIT AND RELY ON EXHIBIT 11 (CHARTING REPORT) AFTER HAVING PREVIOUSLY RULED THAT IT WAS NOT ADMISSIBLE AND REJECTED IT AS REJECTED NO.1
4(A) WHETHER FROM THE EVIDENCE EXTRACTED UNDER CROSS-EXAMINATION, THE LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT THE APPELLANTS DID NOT CALL EVIDENCE TO CHALLENGE THE RESPONDENTS? EVIDENCE.
(B) WHETHER THE RELIANCE ON EXHIBIT 11 (
