Michael Sampson Etukudo & Anor V. Imo James Udoakagha (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This appeal is against the judgment of the High Court of Akwa Ibom State, Eket Division delivered on 10th February, 2010 in Suit No. HEK/100/2000 which was commenced by the respondent and one Unanaubo Mkponne Udoakagha who died before the conclusion of the trial court. By the Writ of summons filed on 30/5/2000, and paragraph 33 of the Statement of Claim filed on 4/5/2001, the plaintiffs had sought the following reliefs against the defendants who are now the appellants:

“1. Declaration that the plaintiffs are the persons entitled to the Statutory Right of Occupancy over the parcel of land called Ekpad Ayih along Grace Bill Road, Ahafa Eket in area specifically known as Atan Ekpene in Ekpene Afaha Eket in Eket Local Government Area.

2. The sum of N500,000.00 (Five Hundred Thousand Naira) being special and general damages for trespass on the land.
3. An order of perpetual injunction restraining the defendants, by themselves, their servants, privies, and agents from further trespass on the said land.”

The defendants (appellants) filed their Statement of defence on 11/7/2001, and at the trial, the surviving plaintiff testified as PW1 and called three other witnesses as PW2, PW3 and PW4. The defendants also defended the suit with the evidence of three witnesses. After taking the evidence (oral and documentary) of the parties and the written addresses by their learned counsel, the learned trial judge, in the judgment of 10/2/2010 granted the reliefs of the plaintiff as follows:

“The case therefore succeeds and I hereby declare that the plaintiffs are entitled to the statutory rights of occupancy over the parcel of land called Ekpad Ayih, being the portion delineated “RED” in the Survey pan No. WIMS/AK33/2000/ID filed by the plaintiff in this case prepared by Etuk William Udofia, Licensed Survey (sic) which land is located along Grace Bill Road, Afaha Eket, Eket Local Government Area. The Defendants shall pay the sum of Three Hundred Thousand Naira (N300,000.00) to the plaintiffs for trespass.”

The defendants (who will hereinafter be called the appellants) were dissatisfied with the judgment of the trial court and filed their Notice of Appeal on 22/2/2010 with three grounds of appeal which they later amended with the leave of this court by addition of one ground. In the Appellant’s Brief of Argument settled by Livinus Udofia Esq. of counsel and filed on 24/12/2010, the following issues were distilled from the four grounds of appeal:

1. Whether the learned trial judge did a proper evaluation of the evidence placed before him?
2. Whether the learned trial judge was right in holding that the failure of the defendants to file a Counter claim or cross action against the plaintiffs renders them unserious in asserting their right over the land?
3. Whether the conduct of the learned trial judge at the visit of the locus was consistent with fair hearing?

The Plaintiff/Respondent’s Brief of Argument was prepared by Akpadiah Etukakpan Esq. of counsel and filed on 26th March, 2012 with the leave of court.

The learned counsel formulated the following issues for determination:

(a) Whether the learned trial judge did a proper evaluation of the evidence placed before him?

(b) Whether the learned trial judge was right in holding that failure of the Defendants to file a Counter Claim or Cross action against the plaintiffs renders them unserious in asserting their right over the land?

(c) Whether the conduct of the learned trial judge at the visit of the locus was consistent with fair hearing?

The briefs of argument were adopted at the hearing of the appeal and the respective learned counsel placed reliance thereon as their arguments. It is noted that the issues formulated by the parties are substantially the same, and the appeal will be determined on the basis of the issues stated in the appellant’s brief.

On issue 1, the appellant contended that the learned trial judge was wrong to have relied on exhibit 2, a report of a panel whose proceedings were inconclusive instead of exhibit 5 the report of another panel that was conclusive.

It was contended further that the respondent did not cross examine the DW1 on this issue of inconclusiveness of exhibit 2, which failure amounted to an admission. The cases of WAEC vs. Oshionebo (2007) All FWLR (pt. 379) 1501; and Ogunyade vs. Oshunkeye (2007) All FWLR (Pt.389) 1179 were cited in support.