Mrs Nse Akaniyene & Ors V. Mrs Grace O. Etim (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Akwa Ibom State High Court sitting at Eket. The Respondent as plaintiff filed a suit in High Court, Eket Akwa Ibom State. The claims of the plaintiff/Respondent were set out as follows:

1. A declaration that the Plaintiffs are the rightful owners of all that piece or parcel of land lying and situate along RCC Road, Ekpene Ukpa Eket, the said piece of land more particularly described and delineated on Survey Plan No. RIM/2960 drawn by R. UKO, a licenced Surveyor.
2. A declaration that any contract or conveyance of whatever nature entered into by the defendants and any person or body corporate and touching on the said piece of land situate along RCC Road, Ekpene Ukpa, Eket without the prior consent and authority of the plaintiffs is void, illegal and or no effect whatsoever.
3. A PERPETUAL INJUNCTION restraining the Defendants by themselves, their agents, servants, privies associates hireling from trespassing in howsoever way into or tampering or dealing in any manner whatsoever with the plaintiff’s landed property lying and situate along RCC Road, Ekpene Ukpa, Eket.
4. An order of Court mandating the Defendants to remove any materials or objects they had carried into and dumped or fixed on the plaintiffs land lying and situate along RCC road, Ekpene Ukpa, Eket.
5. 5 million damages for trespassing into and waste on the piece or parcel of land lying and situate along RCC Road, Ekpene Ukpa, Eket.

After a full trial, the trial Judge delivered his considered judgment on 26th April, 2010 and held inter-alia granting the claims of the plaintiff/Respondent as follows:-

“1. I declare that the plaintiffs are the deemed holders of the Statutory Right of occupancy in respect of all that piece or parcel of land lying situate along Atabong/Eket Road (now RCC Road) Ekpene Ukpa, more particularly described and delineated on survey plan No. RIM/2960 drawn by R. Uko, a licensed Surveyor.

2. I declare that any contract or conveyance of whatever nature entered into by the defendants and any person or body corporate and touching the said piece of land in dispute without the prior consent and authority of the plaintiffs is void, illegal and of no effect whatsoever.
3. An order or perpetual injunction is hereby made restraining defendants by themselves, their agents, servants, privies, and associates from trespassing onto or tempering or dealing in any manner whatsoever with the plaintiff’s land lying and situate along Atabong Road (now RCC road, Ekpene Ukpa), Eket.
4. It is ordered that the defendants shall remove any materials or objects they carried into or dumped or fixed on the plaintiffs, said land.
5. The defendants shall jointly and severally pay N3m (Three Million Naira to the plaintiffs as damages for trespassing onto and waste on the plaintiffs, said land.

Being dissatisfied, the defendant as Appellant filed a notice and 8 Grounds of Appeal. The Appellants filed their appellants, amended brief on 6th July, 2011. Also filed was the Appellant’s Reply brief on the 18th April, 2012 and deemed properly filed and served on 25th April, 2012. The Appellants articulated 3 issues for determination as follows:-

1. Whether the trial court was right in relying on the further Amended statement of Claim and the evidence thereof in awarding Plaintiff’s claim with N3 million damages notwithstanding its non-compliance with the provisions of order 26 Rules 2, 3, 4 and 6 of the High Court (Civil procedure) rules of Akwa Ibom State, 1989 (the rules applicable at the time this action was instituted).
2. Whether having regards to the evidence of the parties led before the trial court coupled with the exhibits tendered, the judgment made in favour of the Plaintiff is not against the weight of evidence as to who proved a better title to the land in dispute.
3. Whether in view of the evidence of DW 1 and DW 2, the trial court was right to hold that the evidence regarding the dealings of the 3rd Defendant and his mother with the land in dispute remained largely unchallenged.

The Respondent filed a Respondent, brief on 21st December, 2011 and deemed properly filed and served on 25th April, 2012. In it, he also articulated 3 issues for determination as follows:-

“Whether the trial court was right in relying on the further amended statement of claim and evidence thereof in awarding the Plaintiff’s claim?

Whether having regards to the evidence of the parties before the trial court including the exhibits rendered, the learned trial Judge was right to have given judgment in favour of the plaintiffs?

Whether in view of the evidence of DW 1 and DW 2, the Trial Court was right to hold that the evidence regarding the dealings of the 3rd Defendant and his mother with the land in dispute remained largely unchallenged?

The issues of both parties are basically me same. However, I will utilize the issues as articulated by the Appellant in the determination of this Appeal.

ISSUE 1

The learned counsel for the Appellants submitted that instead of the Respondent filing an “amended statement of claim”, the Respondent filed a further amended statement of claim without leave. Counsel referred the Court to 026R 2, 3, 4, & 6 of the Akwa Ibom State High Court (civil Procedure) Rules 1989 and submitted that the Court granted the Respondent leave to file an ‘amended statement of claim, instead the Respondent filed a ‘further amended statement of claim’.

Counsel referred the court to the cases of Olaore v. Oke (1987) 7 NWLR pt 67 pg 769, Chinweze v. Masi (1989) 1 NWLR pt 97 pg 254 where the Supreme Court held that “rules of court are made for the benefit of the court and the parties in order to facilitate the process of adjudication and they must, therefore, be followed by counsel” See also John vs. Blakk (1988) 1 NWLR pt 72 pg 648.

Counsel argued further, that the Respondent filed a Further Amended Statement of Claim instead of Amended Statement of Claim and as such breached the court orders. Learned counsel insisted that as it is, there is no valid statement of claim for the court to work on. Counsel, therefore, urged the court to hold that the lower court was in error using, and relying on the Further Amended Statement of Claim. Counsel urged the court to resolve this issue against the Respondent.