THOMPSON & ANOR v. EDEM (2022)

THOMPSON & ANOR v. EDEM

(2022)LCN/16482(CA)

In The Court of Appeal

(CALABAR JUDICIAL DIVISION)

On Tuesday, March 08, 2022

CA/C/328/2016

Before Our Lordships:

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

1. INYANG EMMANUEL THOMPSON 2. REV. DAVID BASSEY APPELANT(S)

And

ELDER EKPENYONG EFFIOM EDEM RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE PROCEEDINGS CAN BE REGARDED AS A NULLITY

It was held in plethora of judicial decision that proceedings before the Court of law can be regarded as a nullity where:-
(a) the Court is not properly constituted as regards numbers and qualifications of members of the bench;
(b) the subject matter of the action is not within the jurisdiction of Court;
(c) the case before the Court is not initiated by a due process of law or that there is a condition precedent to the exercise of jurisdiction. See MADUKOLU v. NKEMDILIM (1962)1 ALL NLR 587. PER SHUAIBU, J.C.A.

WHETHER OR NOT A PLEA BY THE DEFENDANT THAT AN ACTION IS STATUTE BARRED, RAISES THE ISSUE OF JURISIDICTION

A plea by a defendant at the trial Court that an action is statute barred, is one which obviously raises an issue of jurisdiction. It is determined by considering the originating processes of the action. In the present case, the writ of summons and the statement of claim. By so doing and in ascertaining when the wrong the occurrence of which gave rise to the plaintiff’s claim against the background of the time within which the action is to be brought, that determines whether or not the action is statute barred. See MILITARY ADMINISTRATOR, EKITI STATE V ALADEYELU (2007) 14 NWLR (prt.1055) 619 and TAKORI V MATAWALLE (2020)17 NWLR (prt.1752) 165. PER SHUAIBU, J.C.A.

THE POSITION OF LAW ON WHEN A CAUSE OF ACTION IS SAID TO ARISE

WAYS OF PROVING OWNERSHIP OF TITLE TO LAND

I must point out the well settled legal position that title to land can be proved in one or more five ways namely:
1. By traditional evidence.
2. By production of documents of title which are duly authenticated.
3. By acts of selling, leasing, renting at all or part of the land or farming on it on a portion of it.
4. By act of long possession and enjoyment of the land, and
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
See IDUNDUN V OKUMAGBA (1976) 9-10 SC 227.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): At the High Court of Cross River State, holden at Calabar, the respondent instituted an action in Suit NO HC/452/2013 against the appellants herein. By the action, the respondent claimed against the appellants for a declaration to statutory right of occupancy in respect of parcel of land situate, lying and being No. 17/18 Adak Uko Street, Calabar, Cross River State. He also sought damages for trespass and perpetual injunction against the appellants from further acts of trespass on the said parcel of land.

At the trial, respondent made the case that he was granted No.17/18 Adak Uko Street, Calabar via a Deed of Grant by late Chief Xavier Edem Edet Eyo which deed was registered as No. 43 at page 43 Volume 108 at the Lands Registry, Calabar. And that he was also granted Right of Occupancy in respect of No. 17/18 Adak Uko Street, Calabar via Certificate of Occupancy NO CA/394/94. Both the Deed of Grant and the Certificate of Occupancy were tendered, admitted and marked as Exhibits 1 and 2 respectively. When the appellants allegedly encroached into No. 17/18 Adak Uko Street, Calabar some time in 2004, respondent reported the trespass to the Efut combined council of Efut Abua and Efut Ekondo who advised him to proceed to Court through a letter dated 08/08/2006, Exhibit 3.

The appellants’ case on the other hand, was that the same piece of land No.17/18 Adak Uko Street, Calabar was granted to the 1st appellant’s mother, Madam Ani Eno of Ikot Inyang, Okon Eket by one Chief Xavier Edem Edet Eyo of Efut Abua in 1947 and that the mother to the late Xavier Edem Edet Eyo was Princess Idang Okon Ambo who was the granddaughter of Ebuka, the founder of Efut Abua. That Efut Abua clan was the original owner of all lands within Efut Abua including the land in issue.

At the conclusion of trial, the trial Court made a finding of fact that the root of title of the claimant now respondent as a matter of inheritance took its rise from the original source Muri Effiom Asuquo Ambo, the Warrant Chief of Efut Abua. From him to Madam Idang Okon Ambo the mother of Chief Xavier Edet Eyo who inherited from his said mother, then finally to the claimant. The claimant is a descendant of the original overlord.” It held that having succeeded in his claim for trespass, the respondent was entitled to the Right of Occupancy in No 17/18 Adak Uko Street, Calabar, perpetual injunction against the appellants and damages of N1 Million.

The appellants were dissatisfied with the said judgment and now appealed to this Court by their notice of appeal, filed on 9/9/2016 containing five grounds of appeal at pages 133 – 136 of the record. And by leave of this Court granted on 25/11/2021, appellants amended their notice of appeal by filing one additional ground of appeal.

In the appellants’ brief of argument filed on 16/3/2017 but deemed filed on 25/11/2021, five issues were formulated for the determination of this appeal as follows:-
1. Whether the condition precedent to the hearing of this case was observed and complied with by the learned trial judge.
2. Whether or not the learned trial judge was right when he held that the respondent’s action was not statute barred?
3. Whether or not the learned trial judge was right when he held that Exhibit 3, the letter dated August, 8th 2006 is an admission against interest by the appellant’s vendor and operates as Estoppel?
4. Whether or not when there is adverse claim to possession, it becomes necessary to consider who among the contending parties proved a better title?
5. Whether or not the respondent’s predecessor in title had the capacity to alienate the land in issue as an individual to the respondent?

The respondent in his brief of argument filed on 22/12/2021, formulated two issues thus:-
1. Whether the learned trial judge was right when he found and held that the respondent’s suit was not statute barred.
2. Whether the learned trial judge was right when he granted respondent’s claim as he did.

At the hearing of the appeal on 20/1/2022, Eno T. Offong, Esq., learned counsel for the appellants adopted and relied on his brief of argument and urged this Court to allow the appeal. B. Olusegun Esq., learned counsel for the respondent adopted and relied on his brief of argument filed on 22/12/2021 and urged this Court to dismiss the appeal and affirm the judgment of the trial Court.

I have carefully gone through the record alongside the various formulations. The two issues formulated by the respondent are apt and quite apposite. I shall therefore determine this appeal on the bases of the two issues of the respondent as well as the appellants’ issue no.1 which is a recipe of preliminary objection. For ease of reference, the issues are reproduced hereunder as follows:-
1. Whether the condition precedent to the hearing of this case was observed and complied with by the learned trial judge.
2. Whether the learned trial judge was right when he found and held that the respondents’ suit was not statute barred.
3. Whether the learned trial judge was right when he granted respondent’s claim as he did.

ISSUE NO.1
The appellants’ contention here is that by virtue of Order 20 Rule 6 of the High Court of Cross River State (Civil Procedure) Rules 2008, the claimant shall within 14 days after the close of pleadings apply for the issuance of a pre-trial conference hearing notice but if a party or his legal practitioner fails to attend the pre-trial conference or fails to participate, his claim will be struck out, and in case of a defendant, judgment will be entered against him. The failure to conduct pre-trial conference means that the condition precedent to the hearing and trial of the matter now on appeal has not been met. Counsel submitted that when the trial judge heard and determined the matter, he had no jurisdiction and this Court was urged to set aside the judgment.

The respondent has admitted that he did not apply for pre-trial conference and neither did the appellants as defendants, instead of the appellants to invoke Rule 1 (3) of the extant rules, by applying to strike out the suit they consented by proceeding to take part in the trial. It was thus contended that they cannot be allowed to take benefit of their wrong.

Still in contention, the respondent argued that the purpose of pre-trial is to dispose non-contentions matters, give duration as to future course of action and promote amicable settlement. It is never a jurisdictional issue and that the appellants’ contention in this Court is not only an afterthought but oppressive. Counsel submitted that the failure to conduct pre-trial is an irregularity which does not affect the jurisdiction of the trial Court, citing the authority in the case of EKPO V G.T.B PLC & ANOR (2018) LPELR – 46079 (CA).

The pertinent provision of Order 20 of the High Court of Cross River State (Civil Procedure) Rules 2008 provides:-
“1. (1) within 14 days after close of pleadings, the claimant shall apply for the issuance of a pre-trial conference hearing notice as in Form 18.
2. if the claimant does make the application in accordance with the Sub-rule 1 of this Rule, the defendant(s) may also or apply for an order striking out the action 7 days after the time limited for the claimant.”

As rightly posited by counsel to the respondent that pre-trial conference is meant to narrow down the issues in contention which pave the way for the main trial. Thus, pretrial conference can only be held after the parties have filed and exchanged pleadings. It is at this stage that counsel can meet to agree on non-contentions evidence and thereby narrowing down the issues to be tried.

It was held in plethora of judicial decision that proceedings before the Court of law can be regarded as a nullity where:-
(a) the Court is not properly constituted as regards numbers and qualifications of members of the bench;
(b) the subject matter of the action is not within the jurisdiction of Court;
(c) the case before the Court is not initiated by a due process of law or that there is a condition precedent to the exercise of jurisdiction. See MADUKOLU v. NKEMDILIM (1962)1 ALL NLR 587.

In the instant case, the failure to conduct a pretrial conference does not in my view amount to non-compliance with the process of law or a precondition for the exercise of jurisdiction of the Court. I endorse the submission that it was an irregularity that did not affect the merit of the case or occasion a miscarriage of justice. Again, it is too late in the day for the appellants who failed to utilize the opportunity of applying to strike out the suit to now complain about such irregularity on appeal. The appellants having consented and took active part in the trial have waived the right to complain. Furthermore, the issue of pretrial conference having not been canvassed at the lower Court, the leave of this Court must be sought and obtained before raising a fresh issue. I resolved this issue against the appellants and in favour of the respondent.

ISSUE NO.2
The contention of the appellants on this issue is simply that they were already in the land in dispute exercising adverse and overt acts of ownership and possession even before the respondent’s alleged grant of the land in 1976 from Chief Xavier Edem Edet Eyo. Therefore, if they were trespassers, a cause of action for trespass had accrued to Chief Xavier Edem Edet Eyo since 1947 when the 1st appellant’s mother first built a mud and whittle house on the land. Thus, the respondent had inherited that cause of action when he had a grant from Chief Xavier Edem Edet Eyo. It was further contended that when the respondent brought this action on the 17th day of December, 2013 to recover the land from the appellants, his suit was commenced 66 years after the cause of action first arose in 1947 or when Muri Munene Uno Effiom II who is the person with capacity to alienate Efut communal land including the land in issue from 1977 to 2013 which is 36 years. Counsel submitted that in view of Section 1 of the Cross River State Limitation Law which prescribes a 10 year time limit from the date the cause of action first accrued to the claimant or to the person, from whom the claimant derives his title, this action was statute barred and same should have been dismissed by the trial Court.

In his response, the respondent argued that to determine the period of limitation, one look at the writ of summons and statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. He referred to the case of TEXACO PANAMA INCORP. V SHELL (2002) 2 SC (prt.11)1 at 25 and FADARE V A.G., OYO STATE (1982) ALL NLR 26 at 37. Counsel also submitted that by the averments in paragraph 9 of the statement of claim, the cause of action arose in October, 2003 when the appellants entered unto the land in dispute and the action having been filed on 17/12/2013 is within the 10 years period stipulated in Section 1 of the Limitation Law.

A plea by a defendant at the trial Court that an action is statute barred, is one which obviously raises an issue of jurisdiction. It is determined by considering the originating processes of the action. In the present case, the writ of summons and the statement of claim. By so doing and in ascertaining when the wrong the occurrence of which gave rise to the plaintiff’s claim against the background of the time within which the action is to be brought, that determines whether or not the action is statute barred. See MILITARY ADMINISTRATOR, EKITI STATE V ALADEYELU (2007) 14 NWLR (prt.1055) 619 and TAKORI V MATAWALLE (2020)17 NWLR (prt.1752) 165.

The pertinent question now is when did the cause of action arise in this suit? A cause of action arises on a date or from the time when the breach of any duty or act occurs that precipitated the person thereby injured or the victim who is adversely affected by such an infraction to commence the action to assert his right or have his legal right protected from the breach. In other words, a cause of action arises on the date of the occurrence neglect or default complained of and not the consequence or result of the occurrence of infraction. See WOHEREM V EMEREUWA (2004) 13 NWLR (prt. 890) 398, A.G, ADAMAWA STATE V A.G. FEDERATION (2014) 14 NWLR (prt. 1428) 515 and ADEKOYA V FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (prt.1099) 539.

The respondent at the trial Court asserted that he was vide a deed of grant, granted a piece of land situate at No.17/18 Adak Uko Street, Calabar and also obtained a certificate of occupancy No CA/3943/94 in respect of the said land. That sometimes in October, 2004, the appellants trespassed on the land. In paragraph 9 of the statement of claim, the respondent pleaded that-
“9. The claimant avers that sometime around October, 2004, the defendants broke and entered into the claimant’s land situate at No. 17/18 Adak Uko Street, Calabar South, Cross River State. The claimant reported the matter to the then Muri Munene of the Efuts, Late Ita Okokon Ekpenyong.”

Appellants made copious reference to their averments in paragraphs 4, 6, 8, 9, 10 and 15 of the amended statement of defence in contending that they have been in adverse possession of No.17/18 Adak Uko Street, Calabar since 1947. I have stated earlier that the plea of statute of limitation is only determined by considering the originating processes of the action, in this case the writ of summons and the statement of claim. Furthermore, a right of action accrues when the person that sues becomes aware of the wrong. In CIL RISK & ASSETS MGT. LTD V EKITI STATE GOVT. (2020)12 NWLR (prt. 1738) 203 at 260 – 267, the Supreme Court has held that it is only reasonable and just that a party sues when he becomes aware that his right has been tampered with; for as long as he is unaware that someone has dealt with his property inconsistent with his ownership, he cannot sue.

In the instant case, the cause of action accrued sometime around October, 2004 when the respondent became aware that the appellants broke and entered into his land situate at No.17/18 Adak Uko Street, Calabar South, Calabar, Cross River State. The respondent’s writ of summons and statement of claim having been filed on 17/12/2013, the 10 years time limit provided in Section 1 of the Limitation Law of Cross River State has not lapse. From October, 2004 to 17/12/2013 is nine years, two months and thus the suit was not statute barred. Issue No. 2 is also resolved against the appellants.

ISSUE NO. 3
This issue questions the evaluation of evidence wherein the appellants contended that the content of Exhibit 3, (letter to the respondent by Efut Abua and Efut Ekondo combined council) did not amount to admission against interest.

Still in contention, counsel referred to the testimony of DW3 in submitting that where an admission against interest does not vindicate or reflect the material evidence before the Court, a Court of law is entitled not to assigned any probative value to it citing the authority in the case of ODUTOLA V PAPERSACK (NIG) LTD (2007) ALL FWLR 1214.

In further contention, counsel submitted that Exhibit 3 did not operate as estoppel against the appellants’ predecessor in title as it did not give ownership of the land to the respondent to warrant the finding of the trial judge that same was an admission and therefore no evidence should be led to contradict it. Counsel continued that before the doctrine of estoppel is raised in Court, it must be duly pleaded but where as in the present case, a Court raises the point suo motu, the parties must be given opportunity to be heard on the issue. He referred to MENAKAYA V MENAKAYA (1996) 9 NWLR (prt. 472) 256, IKPUKU V IKPUKU (1999) 5 NWLR (prt.196) 127 and ADEGOKE V ADIBI (1992) 5 NWLR (prt. 242) 410.

As regards the lower Court’s findings on the parties’ adverse claim to possession, appellants argued that it is the law that where two persons claim to be in possession of the same piece of vacant land, who ever shows a better title is the winner. It is not mandatory that a defendant must file a counter-claim before a Court can consider who proved a better title amongst the contending parties. Counsel concluded that the appellants having shown a better title should have been declared winners by the learned trial judge.

Finally, on burden of proof, counsel submitted that it is Muri Munene of the Efuts who has the right to exercise power over Efut lands including the land in dispute and thus Chief Xavier Edet Eyo who executed Exhibit 1, the Deed of Grant with the respondent had no such right and therefore the said grant is void. Furthermore, Exhibit 2, the certificate of occupancy NO CA/3943/94 which was issued based on a void Deed of grant is also a nullity.

The respondent on his part argued that Exhibits 1 and 2 on the surface are valued and genuine and therefore ought to be considered as such particularly having regard to the fact that they have not been contested by the appellants on the ground of validity and genuineness. The only contention according to counsel, was that since at the time of the grant in 1950 by he said Chief Xavier Edem Edet Eyo there was in existence the Efut Abua and Efut Ekondo combined council, the respondent’s grantor had no capacity to make such grant. He thus contended that before the formation of the Efut Abua and Efut Ekondo combined council, they had their lands separately and independently from each other. Therefore, where the grant of the land to the claimant’s grantor’s mother by the Efut Abua was before the formation of the joint council the land ceases to be communal land but private land the owner does not need the consent of the combined council to effectively make grant of his land. Counsel referred to paragraph 6 of the statement of claim as regards to when the grant by Efut Abua clan was made to the respondent’s grantor’s grandmother in 1930 as well as the Supreme Court’s decision in Registered Trustees of the APOSTOLIC FAITH MISSION V JAMES (1987) 3 NWLR (prt. 61) 556 at 573 to contend that the combined council of Efuts was only formed in 1941 which put to rest all the hullabaloo on the existence of the said council.

On the appellants’ attempt to impeach the judgment of the lower Court based on Exhibit 3 on ground that the issue of estoppel was raised suo motu, the respondent contended that the appellants have expressly admitted the root of the respondent’s title on paragraphs 5, 6, and 7 of the statement of claim and their paragraphs 5 and 7 of the amended statement of defence and thus the learned trial judge was right when he held that they are estopped from taking a contrary position. The said finding has to do with credibility of DW3 who authored Exhibit 3 and does not warrant the in-violation of the doctrine of estoppel per rem judicata as contended by the appellants.

On the alleged failure of the trial judge to consider the relative strength of possession of the parties, it was submitted that possession is ascribed to the party who proved title to the land in dispute. He referred to CARRENA V AKINLASE (2008) 14 NWLR (prt. 1107) 262 at 281 to the effect that a trespasser, though in actual physical possession of the land, is regarded in law not to be in any possession since he cannot, by his own wrongful act of trespass, acquire any possession recognized at law. And lastly on the need for the respondent to prove the title of his predecessor or his grantor, it was submitted that the appellants having admitted the respondent’s grantor’s title on paragraphs 5 and 7 of the amended statement of defence, it is fruitless to seek for proof of same relying on AJIBULU V AJAYI (2014) 2 NWLR (prt. 1392) 483 at 499.

I must point out the well settled legal position that title to land can be proved in one or more five ways namely:
1. By traditional evidence.
2. By production of documents of title which are duly authenticated.
3. By acts of selling, leasing, renting at all or part of the land or farming on it on a portion of it.
4. By act of long possession and enjoyment of the land, and
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
See IDUNDUN V OKUMAGBA (1976) 9-10 SC 227.

It is equally settled that where in a claim for declaration of title to interest in land a party bases his title on a grant according to custom by a particular person, family or community, that party must go further to plead and prove the origin of the title of that particular person, family or community unless that title has been admitted. Consequently, mere production of a deed of grant as being equivalent to proof of title when the root of title of the grantor was neither admitted nor established is not sufficient. See BAMGBOYE V OLUSOGA (1996) 4 NWLR (PT 444) 520, KALIO V WOLUCHEM (1985)1 NWLR 610 and THOMPSON V AROWOLO (2003)4 SC prt.11) 108 at 156.

The respondent as claimant before the lower Court claimed that the land in dispute was granted to him vide a deed of grant by late Chief Xavier Edem Edet Eyo which deed was registered as NO 43 at page 43 Volume 108 at the Land Registry, Calabar. He went further in paragraphs 5-8 of the statement of claim to plead the origin of the title of the land to the said Chief Xavier Edem Edet Eyo thus:- “5. Late Chief Xavier Edem Edet Eyo inherited the larger parcel of land including No.17/18 Adak Uko Street, Calabar South, Calabar, from his mother, Late Madam Idang Okon Ambo, the daughter of Mbukpa Etta Odionka of Efut Abua about 1950.
6. Late Madam Idang Okon Ambo in turn got the land granted to her by Muri Effiom Asuquo Ambo, a warrant Chief of Efut Abua on behalf of Efut Abua Efut Abua Clan about 1930. Efut Abua clan is the original owner of the land who deforested same and settled thereon wherefrom the claimant and his predecessors in title descended.
7. The claimant’s Deed of Grant is registered as No. 43 at page 43 in Volume 108 of the Land Registry Calabar. The then Military Administrator of Cross River State granted Right of Occupancy to the claimant via Certificate of Occupancy No. CA/3943/94.”

In his evidence before the lower Court, the respondent stated that when in October, 2004, the appellants broke and entered his land at 17/18 Adak Uko Street, Calabar, he reported the matter to the then Muri Munene of Efuts, late Ita Okokon Ekpenyong who on several occasion invited the appellants before the council but failed to appear. It was when his complaint to the Efut combined council was pending that the appellant started constructing shops, stalls and church on his land.

It is pertinent to restate that the appellants are not denying the respondent’s root of title but the only contention is that since the grant was done by an individual and not the Efut Abua and Efut Ekondo combined council, the mother of the late Chief Xavier Edem Edet Eyo had no capacity to make the grant because Efut lands are communal and therefore cannot be alienated by an individual. The appellants predicated their argument on the evidence of DW3, Ndabo (Dr) Godwin Bassey to the effect that Exhibit 3 neither give title to the respondent nor admitted that the title belonged to the respondent.

Exhibit 3, is a letter authored by DW3 in his capacity as the Secretary General of Efut combined council inviting the appellants based on the complaint lodged by the respondent. In it, the Efut combined council acknowledge that respondent had presented documents regarding his possession to the land in dispute and advised him to seek redress in Court since the appellants refused to honour their invitation. In his evidence, DW3 testified that in 1976, the 1st appellant’s mother was invited by Efut Abua and Efut Ekondo combined council to come with her document and when it was discovered that the grant was done by an individual and not the combined council, she was advised to enter into a new lease. And a new agreement was made between Muri Munene Ita Okokon Ekpenyong on behalf of the council and the 1st appellant on 23/07/2002.

I have stated earlier that the fuss is not on the respondent’s root of title but on the capacity of the grantor to make the grant which the appellants argued that, being a communal land only the Efuts combined council could legitimately make the grant and not an individual. The twin questions arising from the above are when was the grant made to the respondent’s predecessor in title and also when does the Efuts combined council assumed the control of Efuts land inclusive of the land in dispute?

In paragraphs 5 and 6 of the statement of claim, which are reproduced in this judgment which is in tandem with the evidence of CW1 that his grantor Chief Xavier Edem Edet Eyo inherited the larger parcel of land inclusive the land in dispute from his late mother Madam Idang Okon Ambo, the daughter of Mbukpa Etta of Efut Abua clan about 1950. Furthermore, late Madam Idang Okon Ambo in turn, got the land granted to her by Muri Effiom Asuquo Ambo, the warrant Chief of Efut Abua on behalf of the Efut Abua clan about 1930. Thus, according to the respondent’s pleading and evidence, his grant dates back to 1930.

Counsel to the respondent had referred this Court to an earlier decision of the apex Court in Registered Trustees of the APOSTOLIC FAITH MISSION V JAMES (Supra) which put paid to the contention as to when Efut combined council came into existence. The excerpts of that judgment which was quoted in his brief, per Nnamani, JSC at p.573 paras- E – G also read as follows:-
“The Court of Appeal re-evaluating Exhibit 7 as they were entitled to do the learned trial judge having ignored it, held that the council was indeed set up in 1941. Aseme, JCA at page 91 of the record of this evaluation came to this conclusion:
From the foregoing, it is historically beyond doubt that the combined council under the single headship of one Muri came into being sometimes in 1941 and that prior to this time, the two communities acted in all respects independently as separate entities.”
Counsel to the appellants strenuously argued that the decision of the Supreme Court above having not been pleaded or tendered in evidence and or brought to the attention of this Court cannot be called upon to take judicial notice of it.
The provision of Section 17 of the Evidence Act 2011 provides that a custom may be judicially noticed when it has been adjudicated upon once by a superior Court of record. Similarly, Section 122 (2) (l) of the said Evidence Act states that –
“(2) The Court shall take judicial notice of
(l) all general customs, rules and principles which have been held to have the force of law in any Court established by or under the Constitution and all customs which have been duly certified to and recorded in any such Court.”
It must be noted that this Court is duty bound to take judicial notice of the above Supreme Court judgment which per force have decisive effect on the fact in issue in this proceedings. See LAFIA LOCAL GOVT. V EXECUTIVE GOVT. NASARAWA STATE & ORS (2012) LPELR – 20602 (SC) and ADEGBOYEGA V IGBINOSUN (1969) LPELR – 25549 (SC). In OSAFILE & ANOR V ODI & ANOR (1990) LPELR – 2783 (SC), the Supreme Court was emphatic that a Court will take judicial notice of its records and proceedings reported or unreported. It is only for convenience that published report of valid judgments of Court or copies of its unreported judgments are brought before a Court. They need not be, they could just be cited.
It is also my view based on the foregoing, that where as in this case, a custom has been judicially noticed, the need to lead evidence to prove same is dispensed with and thus the evidence of DW3 aimed at establishing the formation of the combined Efuts council has no utilitarian value to serve. Invariably, the respondent having satisfied the lower Court of his root of title through cogent evidence, he was entitled to judgment.

On the trial Court’s findings on Exhibit 3 as constituting an admission against interest, the law is firmly settled that for an admission to be binding on a party, it must be clear, unconditional and unequivocal. In ODUTOLA & ANOR V PAPERSACK NIG LTD also reported in (2006) LPELR – 2259 (SC) at pages 29 – 30 paras E-A, TOBI, JSC said:-
“An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the Court, it must also vindicate and reflect the legal position.”

I agree with counsel for the appellants that Exhibit 3 cannot under whatever guise be described as an admission against interest as same was neither unequivocal nor reflect the legal position. Thus, this Court will not assign any probative value to it. Exhibit 3 does not as well warrant the invocation of the doctrine of estoppel per rem judicata.

Turning to the issue of relative strength of possession of the parties which the appellants alleged that the lower Court did not consider, it is beyond argument that a trial Court has a duty to consider all issues properly raised and canvassed before it and make findings of fact thereon.

Once a defendant claims to be the owner of the land in dispute, as in this case, title to it is put in issue and in order to succeed, the plaintiff must show a better title than the defendant. And in a claim for trespass as in this case, all a plaintiff needs to prove is exclusive possession or a right to such possession of a land in dispute. In the instant case, the respondent had successfully established his right to such possession and that possession is ascribed to the party who proved title to the land in dispute.

In the result, this appeal fails and it is hereby dismissed with costs which I assessed at N100,000.00 against the appellants and in favour of the respondent.

BALKISU BELLO ALIYU, J.C.A.: I agree with the judgment prepared by my learned brother, M. L Shuaibu, JCA. The reasoning and conclusion reached therein accord with my view on the outcome of the appeal and I adopt same as mine. I too dismiss the appeal and affirm the judgment of the trial Court. I abide by the order of cost made in the lead judgment.

ADEMOLA SAMUEL BOLA, J.C.A.: I have read in draft the judgment delivered by my brother, Hon. Justice MUHAMMED LAWAL SHUAIBU, JCA. I am in agreement with his reasoning and conclusion.

I have considered the provisions of Order 20 Rule 6 of the High Court of Cross River State (Civil Procedure) 2008 which states that the Claimant shall within 14 days after the close of pleadings, apply for the issuance of a pre-trial conference hearing notice as in Form 18. Rule 6 (2) provides that if the Claimant fails to make the application in accordance with Sub-Rule 1 of this Rule the Defendant(s) may also apply for the order striking out the action 7 days after the time limited for the Claimant.
At the lower Court, neither the Claimant nor the Defendant complied with the rules. In other words, the Claimant failed to apply for the issuance of pre-hearing conference notice as required in Sub-rule 1, while the Defendant failed to apply to strike out the action on the ground of non-compliance by the Claimant. Under Sub-rule (2), both parties proceeded to the hearing of the case without complying with the requirement or provisions of the rules. Of what effect is the non-compliance with the rules? Order 11 Rule 1 (1) of the Cross Rivers State High Court Rules provides a clear answer to this question as follows:
Order 11 Rule 1 (l) state:
I. Whether in beginning or purporting to begin any proceeding or at any state in the course of or in connection with any proceeding, there has by anything done or left done, being a failure to comply with the requirement of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated will not nullify the proceeding, or any document, Judgment or Order therein.”
Applying the above to the failure of the parties to comply with the rules of the lower Court in respect of Order 20 Rule 6 (1) & (2), the non-compliance could be treated as an irregularity which cannot nullity proceedings of the lower Court in respect of the action before it and the Judgment of the Court. The non-compliance cannot be said to be a fundamental vice capable of rendering invalid the proceeding and the decision of the Court. It does not vitiate totality of the action placed before the Court. It does not rob the Court of its jurisdiction, more particularly that it is not a condition precedent to the assumption of jurisdiction.
Further to this, the Appellant cannot complain of non-compliance with Order 20 Rule 6 (1) & (2) having condoned or waived the non-compliance by the Respondent. Where a party alleges non-compliance with the Rules of Court, yet files counter-affidavits or other process, he is deemed to have taken fresh steps in the proceedings since knowing of the non-compliance complained of. He is therefore prevented from raising the alleged non-compliance. See the case of COOPERATIVE COMMERCE BANK (MG.) PLC VS. A.G. ANAMBRA (1992) 8 NWLR (PT. 261) 528 @ 554.
Consequently, I am in agreement with the decision of my learned brother, M. L. SHUAIBU, JCA that the Appellants having consistently taken active part in the trial Court is deemed to have waived that right to complain of non-compliance.

This appeal therefore lacks merit. It is accordingly dismissed. The judgment of the lower Court is affirmed.