Madam Babie Angel Lawson V. Dr. Victor O.b. Frank-higgwe & Anor. (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of Rivers State High Court (Coram: P.N.C. Agumagu, J) delivered on 17th July, 1998 in the Suit No. DHC/2/94. The notice of appeal was filed sequel to the order of this court granted on 14th January, 2004 which extended in favour of the Appellant time within which to file the appeal.

The Appellant filed a total of six (6) grounds of appeal. Out of these grounds of appeal three (3) issues were formulated for determination in this appeal. The issues are:-

1. Whether the respondents successfully proved their title to a defined area of land against the defendant.
2. Whether the suit is not statute barred in the first place.
3. Whether in the special circumstances of this case the lapse in time between the proceedings up judgment did not constitute a miscarriage of Justice under the 1979 Constitution of Nigeria.

The Respondents in their brief adopted only issue 1 as the only issue germane for the determination of the appeal.

The suit at the trial court was for a declaration that the plaintiff, the Higgwe Family of Buguma, are the owners of the piece or parcel of land known as Higgwe Kiri lying and being at Oboko Polo, Buguma, and the sum of N100,000.00 as damages for trespass to the said Higgwe Kiri land “sometime in 1993”. The plaintiffs also sought perpetual injunction to restrain the Appellant, as the defendant, from commuting further acts of trespass on the said land.

The parties exchanged pleadings. The plaintiffs attached to the statement of claim survey plan No. CTH 134-LD made on 2nd August, 1994 by a licensed surveyor, Chief C.T. John-Horsfall. The defendants, present Appellant, expressly admitted in her statement of defence, paragraph 4 thereof, averring that “the lands on which JONATHAN ORLU HIGGWE, CHIEF F.F. HIGGWE and late Mr. FRANK HIGGWE built their houses as shown on plaintiffs’ plan were granted to them respectively by the Head and principal members of AHAKIRIYE – OBOKO House”. I do not therefore think that there is in any dispute that the parties know the land in dispute. They all know the land very well.

The plaintiffs, Respondents now, had pleaded in paragraph 11 of the statement of claim that following the 1982 dispute the panel headed by the retired Justice O. Inko-Tariah arbitrated and returned a verdict in writing “that the land in dispute belonged to the plaintiff’s family” and that the defendant/Appellant “submitted to the jurisdiction of the panel and did not contest its verdict”.

This averment was again admitted expressly by the Appellant in paragraph 11 of the statement of defence. She merely added therein that “the settlement did not confer title over the land to anyone.”

The immediate cause of action was pleaded in paragraph 12 of the statement of claim thus:-

12. Despite the verdict of the panel-, the Defendant again in November, 1993, without leave or licence of the plaintiffs, broke into the land and commenced construction of a building which she had stopped since after the verdict in 1982 and consequent upon a complaint before the Chiefs of Horsfall Group of Houses.

The Defendant, again, in paragraph 12 of the statement of defence expressly admitted that she” recommenced the building work in November, 1993 and that the plaintiffs complained to the Horsfall Group of Houses.”

The plaintiffs called one witness. That is the 1st plaintiff/Respondent, who testified as PW.1. After several abortive adjournments to enable the defence counsel cross-examine this witness the trial court foreclosed the defence right to cross-examine the PW.1. And the plaintiffs closed their case resting it on PW.1’s evidence. The survey plan identified by P.W.1 as ID.1 was not formally tendered in evidence. The written verdict of the arbitration panel of Justice O. Inkoh-Tariah was also not tendered in evidence.

The learned trial judge in his judgment gave the summary of the chequered history of the case. He highlighted, particularly the “conduct of the defendant, which was in the nature and form of persistent absence in court.” This, according to the learned trial judge, contributed to the delay in the determination of the suit. Of note, however, the learned trial judge stated-

That the delay in delivering the (judgment), was due to any transfer from Degema Judicial Division to Nchia Judicial Division. On the orders of the Hon. Chief Judge of the State, it became necessary for one to visit Degema from time to time to preside over part heard matters. Lots of arrangement and effort has to be put in place in terms of logistics and accommodation, before each trip is successfully made. That is why the judgment had to wait till now.

I have read all the briefs of argument filed and exchanged. I have also read the Record of appeal transmitted on 22nd June, 2006. In my humble view the three issues formulated by Appellant are more apposite for the determination of the appeal. I intend to work with them, therefore, in my consideration of the appeal.