Accelerated Educational Services Ltd. & Anor V. Prince Ekpo Okang Ekpo & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Cross River State, Calabar Judicial Division, delivered on 5th June, 2009 in Suit No. C/246/96, which the respondents as plaintiffs commenced through the Writ of Summons filed on 16th May, 1996 for the reliefs averred as follows in paragraph 13 of the Further Amended Statement of Claim filed on 31/3/2009:

“1. A declaration that the plaintiffs are entitled to a Statutory Right of Occupancy over all that parcel of land lying, being and situate at Njahasang village in Big Qua Town, Calabar.

2. A mandatory injunction compelling the Defendants by themselves, agents, or privies to remove from the plaintiffs land forthwith the walls and other structures erected thereon as part of the defendants’ sports stadium complex.
3. A perpetual injunction restraining the defendants, their servants, agents or privies from howsoever trespassing into the said land.”
4. The sum of N30,000,000.00 (thirty million naira) being general damages for trespass.

The defendants’ (now appellants) Statement of defence filed on 14th April, 1997 was amended, and further amended by the Further Amended Statement of Defence/Counter Claim filed on 26th October, 2005. The following reliefs were sought by way of counter claim:

1. AN ORDER OF PERPETUAL INJUNCTION restraining the plaintiffs, their servants, agents and privies from entering or interfering with the Defendants’ land situate at Otop Otop Layout, Atimbo Calabar, Cross River State of Nigeria.
2. A DECLARATION that the Defendants are entitled to a Statutory Right Occupancy (sic) over all that piece of land known as Plots No. 71-74 and lying, situate at Otop Otop Layout, Atimbo, Calabar.
3. The sum of N10 Million Damages jointly and severally against the plaintiffs being damages for trespass.”

The respondents filed Reply and Defence to Counter Claim on 11th December, 2001. At the conclusion of pleadings, oral evidence was adduced. The respondents called one witness as PW1 while the appellants called two witnesses as DW1 and DW2. In the judgment delivered on 5th June, 2009 the learned trial judge granted the reliefs of the respondents in the following terms as stated on page 154 of the record of appeal:

“1. It is hereby declared that the plaintiff are entitled to a statutory Right of Occupancy over all that parcel of land lying, being and situate at Nyahasang village in Big Qua Town, Calabar more particularly described in a survey plan made by R.F. Uko, Licensed Surveyor dated 23-1-78 admitted as exhibit 1 in the proceedings.

2. An order of mandatory injunction is hereby issued compelling the Defendants by themselves, agents or privies to remove from the plaintiff land forthwith the walls and other structures erected thereon as part of Defendants sports stadium complex.
3. An order of perpetual injunction is hereby granted restraining the Defendants by themselves, their servants, agents or privies from Howsoever trespassing into the said land.
4. The sum of N2 million General damages for trespass is hereby awarded in favour of plaintiffs against the Defendants.
5. Cost of N20,000.00 is also awarded in favour of the plaintiff against Defendants, and
6. Defendants Counter Claim against the plaintiffs is hereby dismissed for being lacking in merit”.

Dissatisfied with the judgment the defendants (appellants) filed Notice and Grounds of Appeal on 13th July, 2009 raising 10 grounds of appeal. The Appellants’ Brief of Argument filed on 30th November, 2010 was amended by the Amended Appellants’ Brief of Argument filed on 26th September, 2011 but deemed filed on 19th March, 2012. The following issues were formulated for determination:

1. Whether Respondents properly pleaded their root of title, predicated on traditional history, and if they did (which is denied), whether they led evidence in proof thereof or any other method of proof of title? Grounds 1, 2 & 4).
2. Whether Respondents proved with certainty the quantum and identity of the land in dispute, regard being had to their pleadings, oral evidence and survey plans to justify the injunctive and declaratory reliefs awarded to them? (Grounds 3 and 5).
3. Whether the learned trial judge properly appraised and evaluated the oral evidence of the parties against the rigid yardsticks of both their pleadings and documentary evidence and made proper findings and inferences, and if he did not, whether the omission or failure did not lead to a perverse verdict? (Ground 8).
4. Whether having regards to the pleadings of Appellants, their evidence and the submissions by Respondents the learned trial judge was right in dismissing Appellants’ Counter Claim?
5. Whether in all events the award of N2,000,000.00 as general damages in favour of Respondents can be justified?

The Amended Respondents’ Brief of Argument filed on 3oth December, 2010 was deemed on 20th April, 2012. The Respondent distilled two issues for determination as follows:

1. Whether the Respondents as plaintiffs proved their case of trespass.
2. Whether the trial learned judge was right to dismiss the appellants’ Counter Claim.

The two issues raised by the respondents are embedded in the appellants’ five issues. I will adopt the issues formulated by the appellant for purpose of determination of this appeal.

The learned counsel for the appellant, Dafe Diegbe Esq. submitted on issue one that the averment of the respondents in paragraphs of their Further Amended Statement of Claim does not amount to a proper pleading of traditional history and the evidence adduced by the PW1 fell short of evidence of traditional history, counsel relied on Ali vs. Alesinloye & Ors. (2000) 4 SC (Pt. 1) 111; Dike & Ors. V. Okoloedo & Ors. (1999) 7 SC (Pt. 111) 35. According to counsel, the respondents did not plead and did not give evidence of who were their forefathers that founded the land, how he got there, and how the land devolved on them in recent times.

It was contended that the learned trial judge was not right to have held that the respondents’ survey plan was evidence of possession and ownership of the land in dispute. The five methods of establishing title to land were stated by counsel with the decision in Idundun v. Okumagba (1976) 9 & 10 SC 277 cited in support, and contended that a party who relies on one method will succeed or fail on the method unless such a party amends his pleadings, citing Eze & Ors. V. Atasie & Ors. (2000) 6 SC (Pt. 1) 214.

It was further contended that the respondents pleaded traditional history as their source of title, and could not rely on long possession as basis for their claim of ownership of the land because they did not plead and proof long possession and the trial judge did not make any finding of proof of title by the respondents by acts of long possession which is required in a claim for title. It was therefore misdirection for the learned trial judge to have held that the respondents were entitled to a declaration of title based on the finding that their survey plan was evidence of possession and ownership of the land.

The second issue in the appellants’ brief still touches on the proof of the respondents’ claim and is related to the above issue and issue no. 1 in the respondents’ brief.

The contention of the learned counsel is that the survey plan tendered as exhibit 1 by the respondents was not consistent with their oral evidence on the description and identity of the land in dispute particularly on the boundary to the east and the south of the land and the learned trial judge was not right to have found that the boundaries of the land were correctly described by the PW1 in his evidence in chief and that the land is known to both parties. It was further contended that the identity of the land in dispute was an issue because while the respondents asserted that it was located at Njahasang village, appellants asserted that where they built was at a place called Otop Otop in Atimbo, and exhibit 7, a survey plan of the respondent shows that Atimbo and Njahasang are distinct and different places.