AUGUSTA PETER EKANEM V. CHIEF AKPAN UDON ODUNG AND 2 ORS

Legalpedia Citation: (2023-07) Legalpedia 76513 (CA)

In the Court of Appeal

CALABAR JUDICIAL DIVISION

Tue Jul 4, 2023

Suit Number: CA/C/320/2020

CORAM

Muhammed Lawal Shuaibu JCA

Abubakar Mahmud Talba JCA

Mohammed Danjuma JCA

PARTIES

AUGUSTA PETER EKANEM

APPELLANTS

CHIEF AKPAN UDON ODUNG
MR. ESANG MOSES ANKOH
MR. MFON UDO

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, LAND, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The appellant at the trial Court claimed that Uruk Uso village council head, Chief Okon Udo Udung, the youths of Uruk Uso, and the principal members of the respondent’s family of Nto Etukidem requested from her the sum of N45,000.00 for the bail of those who were arrested by the police over the Ogboni cult case with a promise to refund the money. She further caimed that when they were unable to refund the N45,000.00 to the appellant, they unanimously agreed to hand over the land in dispute which was the Ogboni cult case to the appellant in lieu of the N45,000.00 and thus an agreement to that effect was drawn, Exhibit P1. The appellant claims to have been exercising acts of ownership and possession from 1990 up to 2014 when the respondents trespassed into the land and erected a sign post with inscription “proposed site for Uruk Uso Shopping centre” The respondents however denied the claimant’s claims and asserted that the people that purportedly execute the agreement were not family heads and principal members of the family and were not therefore vested with the legal authority and capacity to grant transfer or sale a family land to the appellant.

At the conclusion of the trial and in a considered judgment the trial Court dismissed the claimant’s claim in its entirety.

Dissatisfied with the judgment of the lower Court, appellant appealed to this Court hence the instant appeal.

HELD

Appeal dismissed

ISSUES

1.Whether the learned trial Judge properly evaluated the pleadings and evidence of the parties before dismissing the claimant/appellant's claim for declaration to title?

2.Whether the trial Court caused a miscarriage of justice by resting the title of the disputed land known and called “Anwa Ogboni” situate along Essien Road, Uruk Uso Village, Ikot Ekpene Local Government Area, Akwa Ibom State and granting an injunction to protect the land against any wrongdoer?

3.Whether the trial Court had raised any issue or point of law suo motu to warrant inviting parties to address the trial Court on it?

RATIONES DECIDENDI

TITLE TO LAND – DUTY OF A PLAINTIFF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

It is settled that a plaintiff has the duty in an action for declaration of title to land to adduce sufficient and credible evidence to establish the mode of acquisition of his title and of course, he must succeed on the strength of his own case and not on the weakness of the defence (if any) although he may take advantage of the defendant’s evidence where it supports his case after he might have proved his case as required by law. AROMIRE VS AWOYEMI (1972) 2 SC 1. – Per M. L. Shuaibu, JCA

LAND – WAYS OF PROVING TITLE TO LAND

It is also settled that title to land can be proved in one or more ways namely:

a) Traditional evidence,

b) Production of documents of title which are duly authenticated,

c) Acts of possession and ownership which include selling, leasing, renting out all or part of the land or farming on it or a portion of it over a sufficient length of time to warrant the inference of exclusive ownership of the land,

d) Acts of long possession and enjoyment of the land,

e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

See IDUNDUN VS OKUMAGBA (1976) 9-10 SC 227. – Per M. L. Shuaibu, JCA

LAND – POWER TO ASSIGN OR DISPOSE OF FAMILY LAND

The above finding can hardly be faulted on the strength of the fact that the power to assign or dispose of family land lies squarely on the family head with principal members of the family. – Per M. L. Shuaibu, JCA

POSSESSION – EFFECTS OF LONG POSSESSION OF LAND

An adverse and exclusive possession of land for several years could ripen ownership particularly when there is no evidence that the plaintiff who assert the ownership of the land, though aware of the adverse possession of the defendants never in those years either took steps to quit them from the land or demand payment from them of any sort of rents. See AKINBADE VS BABATUNDE (2018) 7 NWLR (PT 1618) 366 @ 397-398. – Per M. L. Shuaibu, JCA

EVIDENCE – WHERE EVIDENCE OF TRADITIONAL HISTORY IS NOT CONCLUSIVE

Furthermore, in MKPINANG VS NDEM (2013) 4 NWLR (PT 1343) 302 @ 313, the apex Court has held that in a claim for declaration of title to land by a plaintiff, if evidence of traditional history is not conclusive, then evidence, if any, on record of acts of ownership or possession should be considered. – Per M. L. Shuaibu, JCA

SUO MOTU – CONDUCT OF COURTS WHEN ISSUES ARE RAISED SUO MOTU

Generally speaking, a Court is not allowed to raise an issue suo motu and decide on it without affording the parties an opportunity to be heard. This is because in doing so, the Court is seen to leave its exalted position as an arbiter and descend into the arena of conflict. Secondly, it is also a violation of party’s right to fair hearing under Section 36 (1) of the 1999 Constitution (as amended) for a Court to terminate or determine a party’s case on an issue raised suo motu without hearing that party on the issue. See KUTI VS BALOGUN (1978) 1 SC 53, EGBUCHU VS CONTINENTAL MERCHANT BANK PLC (2016) 8 NWLR (PT.1513) 192 and OGUNGWA VS WILLIAMS (2020) 8 NWLR (PT.1725) 38 @ 59. – Per M. L. Shuaibu, JCA

APPELLANT – DUTY OF APPELLANT WHERE A COURT RAISED AN ISSUE SUO MOTU

I have stated that the Court has a duty to give the party the opportunity to be heard on any issue it raises suo motu. However, a failure to do so does not necessarily lead to a reversal of its decision. And to warrant the reversal of its decision, the appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. See IMAH VS OKOGBE (1993) 9 NWLR (PT.316) 159 @ 178, OLUBODE VS SALAMI (1985) 2 NWLR (PT.7) 282 and OLURUNDAMI VS IJUMU LOCAL GOVT. (2018) LPELR – 45857 (CA). – Per M. L. Shuaibu, JCA