(2018) LPELR-44309(CA)

Transcription

1 UDO v. EKPENYONG & ANOR CITATION: In the Court of Appeal In the Calabar Judicial Division Holden at Calabar ON MONDAY, 29TH JANUARY, 2018 Suit No: CA/C/372/2014 Before Their Lordships: IBRAHIM MOHAMMED MUSA SAULAWA CHIOMA EGONDU NWOSU-IHEME JOSEPH OLUBUNMI KAYODE OYEWOLE Between PRINCE NKEREUWEM EKPENYONG UDO 1. PRINCE ETIM EKPENYONG (Alias Akpan Ekpenyong) 2. MRS. ELSIE VICTOR OKON And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. EVIDENCE - PROOF OF TITLE TO LAND: Ways of proving title/ownership of land "It is trite that there are five ways of proving title to land in a pretoria of cases among which is NKADO V. OBIANO (1997) 50 LRCN 1084 at 1087 and are as follows: "(1) By Traditional history (2) Production of documents. (3) Ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the person is the true owner. (4) Acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the land. (5) Proof of possession of connecting or adjacent land in circumstances rendering it probable that the owner of such connecting or adjacent land, would in addition be the owner of the land in dispute."per NWOSU-IHEME, J.C.A. (P. 7, Paras. B-F) - read in context

3 CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal as plaintiff at the trial Court claimed against the Respondents as Defendants as follows: 1. A Declaration that the Plaintiff is entitled to the portion of land known as NDON ENEN UDOFIA situate and being at UDOEKONG AKPABIO STREET, ANUA OBIO, UYO. 2. An order of Court restraining the Defendant either by himself, agent, assigns, privies or hirelings from trespassing into the said land. 3. The sum of N141,000 as special damages. 4. The sum of N5,000,000 (FIVE MILLION NAIRA) damages for trespass. In a considered judgment delivered by Justice Philomena S. Etim of the Uyo Division of the Akwa Ibom State High Court in Suit No. HU/210/2008 delivered on the 16th of May, 2014, the Learned Trial Judge dismissed the Appellant s claim in its entirety. Exercising his constitutional right of appeal, the Appellant filed a Notice of Appeal on the 10th day of June, 2014 with Omnibus Grounds of appeal and subsequently filed three additional grounds of appeal on the 24th of June,

4 SUMMARY OF FACTS: The Appellant s claim at the Trial Court was against the 1st Respondent who was the only Defendant at the Trial Court before the application by the 2nd Respondent herein to be joined as a party (2nd Defendant). The Appellant s claim as the Plaintiff did not change as he did not amend his claim despite the fact that the 2nd Respondent joined as the 2nd Defendant at the Trial Court. The Appellant never amended his claim to reflect the joining of the suit by the 2nd Respondent till Judgment was delivered. The case of the 1st Respondent (as 1st Defendant) was that the Appellant sued the wrong person. Put in another way, the 1st Respondent as the 1st Defendant was not the proper person to have been sued. The person who sold the land in dispute to the 2nd Respondent was Rachael Joshua Ekpenyong who happens to be the Niece to both Appellant and the 1st Respondent. The father of the said Rachael was Joshua Ekpenyong, deceased. Joshua Ekpenyong was the younger brother of the 1st Respondent of the same parents, while the said Joshua was the half brother of the Appellant, same father, but different mothers. The 1st 2

5 Respondent s father who was also the father of the Appellant had in his life time given the land in dispute to the said Joshua Ekpenyong as his share of family property. When the Appellant approached the 1st Respondent in 1993 to share the said property, the said Joshua Ekpenyong sued the 1st Respondent and his other brothers before Anua Obio Village Council which in turn administered native oath to him for confirmation that the land in dispute which Appellant wanted a share was indeed given to the said Joshua Ekpenyong by his father. The oath was said to have vindicated Joshua Ekpenyong as owner of the land in dispute. He survived the oath taken and celebrated same. After surviving the oath, Joshua continued to exercise peaceful and uninterrupted possession of the said land without any interference from any person including the Appellant. At the death of Joshua Ekpenyong, a portion of the said land was demarcated and sold, the proceeds therefrom used to bury him. The Appellant was said to have participated fully in the burial. Joshua Ekpenyong was buried in the remaining portion of the land in dispute. It is that same remaining portion of 3

6 the land of late Joshua Ekpenyong where he was buried, the portion sold by his only child and daughter Miss Rachael Joshua Ekpenyong to the 2nd Respondent that is now being disputed. Counsel for the Appellant Nsemeke Daniel Esq distilled three issues for determination, they read: 1. Whether the land in dispute was at anytime apportioned to the 1st Respondent s late junior brother, Joshua Ekpenyong by his late father in his life time. 2. Whether the 1st Respondent was wrongly joined as a party in this suit. 3. Whether the 2nd Respondent acquired any interest on the disputed land from the 1st Respondent s niece, Rachael Ekpenyong. The Respondents counsel Felix Etim Udoh Esq on the other hand also distilled three issues for determination as follows: 1. Whether the trial Court was right in holding that the Appellant did not prove his claims against the 1st Respondent. 2. Whether the trial Court was right in holding that the Appellant s claims were misdirected on the wrong person to wit; the 1st Respondent. 3. Whether the 2nd Respondent acquired any interest on the

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8 disputed land from the 1st Respondent/Appellant s niece, Rachael Ekpenyong. Taking the issues, counsel for the Appellant Nsemeke Daniel Esq, contended that going by the evidence adduced at the trial court, the Appellant was able to establish that his late father did not give the entire Ndon Enen Udofia land to late Joshua Ekpenyong, this, he argued was done by his reliance on the District Court Judgment in which the 1st Respondent was a star witness. Counsel submitted that the 1st Respondent being the eldest in the family and the custodian of their father s land was a material and proper party in the suit. He posited that the said portion of Ndon Enen Udofia was shared into two by the entire family including the 1st Respondent, Appellant, PW2 and PW3 and a portion given to the Appellant and the other portion given to the late Joshua Ekpenyong in 14/7/89. The portion of late Joshua Ekpenyong was sold by the 1st Respondent in Reacting to the foregoing submissions, counsel for the Respondents, Felix Etim Udoh Esq submitted that the issue before the trial Court was not the ownership of 5

9 the family land, but whose share of the family land was the land in dispute. This, counsel argued was confirmed by counsel for the Appellant at page 9 of his brief where, counsel contended, the Appellant s counsel created the impression that after the Ndon Enen Udofia land had been partitioned, it still remained Family land and the 1st Respondent a necessary party to the suit. He argued that even if the 1st Respondent was the proper party, the Appellant would still not have succeeded as he failed to prove his claim by traditional history. Counsel queried, if Ndon Enen Udofia was Appellant s land, why did he allow the deceased father of the Donor in Exhibit 7 to be buried therein, which Appellant and his witnesses admitted. He argued further that since Appellant s evidence in chief was to the effect that Madam Akon Ekpenyong held the land in dispute which was subject matter of Exhibit 5, same having been sold by PW2, counsel posited, the land in dispute had been disposed of and Appellant cannot recover same from the Respondents. There was also Appellant s Reply brief. The issues raised by both counsel are similar though 6

10 couched differently and can conveniently be compressed into one straight forward issue of narrow compass. It is: Whether on the facts and circumstances of this case the learned trial Judge was right in holding that the Appellant s claims were misdirected on the wrong person i.e the 1st Respondent and proceeded to dismiss his claims. It is trite that there are five ways of proving title to land in a pretoria of cases among which is NKADO V. OBIANO (1997) 50 LRCN 1084 at 1087 and are as follows: (1) By Traditional history (2) Production of documents. (3) Ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the person is the true owner. (4) Acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the land. (5) Proof of possession of connecting or adjacent land in circumstances rendering it probable that the owner of such connecting or adjacent land, would in addition be the owner of the land in dispute. It is on Record that the 1st Respondent merely witnessed the 7

11 transaction of the sale of the land in dispute among other witnesses. It is also on Record that he has never been in possession of the said land, and had no interest in the land. He has always maintained that the land was given to Joshua Ekpenyong by his late father inter vivos. Appellant has at no time shown that he has ever been in exclusive possession of the land in dispute. On the contrary, the Appellant under cross examination admitted that the father of the Donor of the Power of Attorney, Exhibit 7 Late Joshua Ekpenyong was buried in the land in dispute, Appellant s witnesses PW2 and PW3 confirmed this. One then wonders why the Appellant folded his hands, participated in the burial ceremonies of Joshua Ekpenyong and in fact watched and allowed him been buried in the land in dispute only to turn round many years after to dispute over the same land. The Appellant therefore failed woefully to prove his claim of Declaration of title as well as Traditional history. Exhibit 7 was tendered by the 2nd Respondent in her defence at the Trial Court. Exhibit 7 is a Power of Attorney wherein the interest in the land in dispute passed to the 2nd 8

12 Respondent. She also tendered Exhibit 10 the Survey Plan of the land in dispute. 2nd Respondent therefore proved her title to the land in dispute by virtue of which she acquired interest in the said land. It follows therefore that Rachael Joshua Ekpenyong lawfully transferred title of the land in dispute to the 2nd Respondent. It is on Record that the Power of Attorney was executed on the 13th of December, The said Power of Attorney was registered as an instrument in the Register of Deeds as No. 96, page 96 in volume 277 dated 2nd October, It is also note worthy that the plan of the Appellant was made on the 19th of December, 2007, after the execution of the aforementioned Power of Attorney on the 13th of December, Again, the statement of claim alongside the reliefs sought was filed on 13/5/2008 when the 2nd Respondent had not yet joined. The 2nd Respondent filed her statement of defence on the 10th of February, 2009 which was amended on the 19th of July, Surprisingly, the claim of the Appellant was filed on 13/5/08 alongside the reliefs sought only as it affected the 1st Respondent as no amended statement of claim 9

13 was filed to co-opt the 2nd Respondent in the reliefs sought. The only reasonable inference is that the Appellant had no claims against the 2nd Respondent, but only against the 1st Respondent as clearly shown in the reliefs sought by the Appellant against the 1st Respondent. Interestingly, the 1st Respondent as mentioned earlier in this judgment, never claimed the land in dispute as his share of the property. He was sued for the simple reason that he witnessed the execution of the Power of Attorney among other witnesses. Curiously, the Donor of the Power of Attorney was not sued. The 1st Respondent clearly was not the proper person to be sued or reliefs sought against. Apart from the above, there is also the claim for the trial court to restrain the 1st Respondent from trespassing into the land in dispute. The 1st Respondent has never claimed the land in dispute nor shown any interest in the land. The Learned Trial Court was therefore well within the law to have refused that claim as there was absolutely no reason to restrain a man who has in no way laid claim to the land in dispute. It follows therefore that since there was no trespass, 10

14 the claims for Special and General damages are bound to fail. I agree with the learned Trial Judge that the entire reliefs sought by the Appellant were baseless and therefore, justifiably dismiss. In the circumstance, the sole issue is resolved against the Appellant and in favour of the Respondents. This appeal is bereft of merit, it is dismissed in its entirety. The judgment of the Trial Court in Suit No. HU/210/2008, delivered on the 16th of May, 2014 by Philomena S. Etim, J, sitting at the Uyo Division of the Akwa Ibom State High Court is hereby affirmed. I award N100, (One Hundred Thousand Naira) costs against the Appellant. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having adopted the reasoning and conclusion reached in the judgment just delivered by C.E. Nwosu-Iheme, JCA, I too hereby dismiss the instant appeal for being bereft of merits. I abide by the consequential orders made therein. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege of reading the draft of the lead judgment just read by my learned brother NWOSU-IHEME, JCA and I agree with the 11

15 reasoning and conclusion therein. The appeal is devoid of merit and it is accordingly dismissed. I adopt the consequential orders in the lead judgment. 12

16 Appearances: Nsemeke Daniel Esq. For Appellant(s) Felix Etim Udoh Esq. For Respondent(s)