Ntoe Andrew O. Ansa & Ors. V. Chief Asuquo Archibong Ishie & Ors (2005)

LAWGLOBAL HUB Lead Judgment Report

PATS-ACHOLONU, J.S.C.

It is not meant in the least to be derogatory of the appellant’s case if I describe the procedural steps taken in this case right from the High Court to this court as somewhat weird and strange. Perhaps the account of the synopsis of the matter right from the inception of the action might give a bird’s eye view of what I mean. There are parties against whom claims were made who have nothing in common with others. The brief and the issues raised and argued follow the same pattern of sheer chaos.

The appellants as plaintiffs recounted of how their ancestors who migrated from a place called Mbakeng in Ekoi found the lands in dispute. They stated that their people lived and thereafter occupied the place and commenced farming on the land and generally exercised maximum acts of ownership by what I would describe as manifesting “habemus sibi animus possidendi” under the leadership of Ntoe Odo Edem otherwise also known as kasuk. The name Kasuk was adopted as the name of the vast area of land founded by the appellants. The story of the appellants is that towards the end of the 19th century, some portions of the land were granted to the families of 1st – 9th respondents under some stringent conditions. They made references to two suits in respect of disputes in Kasuk land viz: C/36/1947 and C/62/1956 both of which they convincingly won to show that they owned the land. They stated that about 1925 due to the rapid increase in the population of the 1st – 9th defendants otherwise 1st – 9th respondents’ people and their insatiable appetite for land grabbing, the head of the appellant’s people took action in the court. Unable to prove his case, he was non suited and he was not able to pay the cost of 7 guineas awarded by the court. They claimed that because of the civil war they lost all the documents relating to the two suits mentioned above and all efforts to obtain the certified true copies proved futile. The people of Ishie (another set of people) and the 1st – 9th respondents not only commenced acts of trespass but also even at Atuaka enquiry gave evidence that the land belonged to them (not the appellants) and indeed started to allocate the lands they were occupying illegally, indiscriminately and denied the appellants title to the land. They complained too that one of the respondents Messrs. Reynold Brezina Brown trespassed into a portion of the land and when a letter was addressed to them by the appellant’s counsel, they ignored it and continued to use the portion they trespassed into for various purposes. They claimed that the 1st – 9th respondents have expanded their hold on the land in the most extensive manner and even putting up a chief as rival to their own. They stated that the delay in instituting the action was as a result of the Ntoeship Chieftaincy dispute which was only resolved in 1975, whereupon this action was brought against the defendants.

Apart from the 1st – 9th respondents there were other parties against whom claims were made and were lumped together in this action against the 1st – 9th respondents. In respect of those parties some diverse claims were made against them in a different vein. Indeed from the records, there are about 6 statements of defence – there was a statement of defence filed by the 12th respondent on the 12th of September, 1980, who counter-claimed; there was another by the 7th respondent filed on 13/6/79. There was a statement of defence filed by the 8th respondent on the 12th September, 1980; there was a defence of the 11th respondent filed on 29/10/80. There was a statement of defence filed by the 4th, 15th, 16th and 17th defendants on 23/5/80. The defendants denied the title of the appellants or any liability to trespass.

At the trial court, judgment was given to the appellant against 1st, 3rd, 7th, 8th, 12th, 15th and 17th respondents who later lodged an appeal to the Court of Appeal against the judgment. In respect of the 12th respondent, the Court of Appeal went on to grant title to his counter-claim. The 1st, 3rd, 7th, 8th, 15th and 17th respondents were successful in the appeal. According to the appellants, because of the nature of the judgment of the Court of Appeal by which they claimed it made a blanket order, even those who did not appeal commenced to take advantage of that judgment.

Being dissatisfied with the judgment of the Court of Appeal, the appellants appealed to this court and filed 26 grounds of appeal from which they framed 12 issues. The bizarre nature of the issues formulated and the style of procedure adopted to argue the issues is not only strange but also equally mind boggling. The so called brief of the appellants is not a brief in a strict sense as it consists of not less than 112 pages and containing 109 cases that are cited. It is a notorious fact that a land case of this nature which has its historical evolution or antecedents in the history of the founding fathers and eventual acquisition of land and exercise of maximum acts of ownership is heavily dependent on the facts of the case rooted in history. That is to say, it is incumbent on the proponents of the action to proffer the testimony that would preponderate over the opposing party’s story. The quizzical feature or the nature of the argument on the issues framed is redolent with procedure unknown in our appellate proceedings in that an appellant had to break up his arguments on the issues he formulated in different headings not just paragraphs as though there are as many cases being appealed against as there are indeed several parties.

In the appellants brief the learned counsel for the appellants writes as follows in the introductory part of the brief.

“For ease of clarity, therefore, argument on each set of defendants/respondents shall be under different parts of the brief. 1st defendants arguments shall be covered in part “A”, 3rd and 7th defendants shall be covered in part “B”, 8th defendant/respondent shall be covered in part “C”, 12th defendant shall be covered in Part “D”, the 15th and 17th defendants shall be covered in part “E”, while part “F” shall include argument clearly common to all the respondents.”

I must confess that the methodology of approach in determining the questions to be resolved by the court tends to make mockery of the manner issues are framed and as I said, strange and odd. In adopting this approach, the questions to be determined are somehow rendered cloudy, woolly and unobtrusive. Counsel should always remember that there are essentially three qualities a brief should possess. They are clarity, precision and accuracy. Any brief that fails to possess these distinctive characteristics leads to incomprehension of the contents and makes it difficult to forage into foliage of unnecessary verbiage in attempting to discern what a party is asking the court to resolve.

The issues that I can decipher from the plethora of the repeated issues framed in different words which indeed taxed the mind and lacks clarity of understanding are as follows (extracts from the appellants issues).

1. Whether the 1st defendant’s (meaning the 1st respondent) brief filed in the Court of Appeal on 10/12/99 years out of time was competent without an order of court regulating same.
2. Whether the learned Justices of the Court of Appeal were right in treating exhibits “R” and “S” tendered by the 1st defendants as evidence (offer) establishing res judicata in their favour.
3. Whether the learned Justices of the Court of Appeal in reversing the judgment that the plaintiffs had proved the acts of trespass rendering the defendants liable to damages for trespass and injunction were justified.
4. Whether the learned Justices of the Court of Appeal found such insufficient documentary testamentary evidence and failure on the part of the trial court to take advantage of having seen and heard the witnesses first to warrant their reversal of the trial court judgment.
5. Whether the learned justices of the Court of Appeal in their judgment delivered almost in the 5th month after argument had not lost track of the case thereby occasioning miscarriage of justice.
6. Whether the appellants put up a convincing case to warrant judgment being to them.”

There are as many respondents’ briefs as there are set of parties each formulating its own issues. This is understandable. I shall in this case depart from the usual mode sometimes used or adopted in the course of determining the questions to be resolved in this court. I am doing this because of the amorphous nature of the brief. This is the approach normally used in English, Scottish and US courts. The method I have in mind is to approach the resolution of the case wholistically as I must confess I find it difficult to understand the case of the appellants whose brief is very confusing.

The appellants in their weird nature of presentation of the case had faulted the competence of the 1st appellant’s brief being, as they argued, filed out of time, leave not having been sought. I have tried to make out or fathom out the argument put forward by the appellant’s counsel on this point and I could state that because of the inelegancy and lack of profundity and analytical precision of the language, the learned counsel for the appellants did not bring out clearly what he is asking this court to do. Chief Mogboh, SAN had referred to this court in his brief these rather shortcomings. Indeed the nature of the objection on this point lacked clarity and did not conform to the procedures that are attendant to our courts. Besides it seems to me that in a situation where the case has lasted for upwards of 27 years it will be fortuitous to rely on ungainly doubtful objection that seeks to further prolong the determination of the case especially where the appellants used indecipherable or unfathomable language to canvass their case. This court in appropriate cases tends to move away from mere technicalities where resort to the form would cause a great delay in resolving the main issues in controversy. In this case the causa celebre is the issue of ownership of the land in dispute along with alleged incidents of trespass. The objection argued as much as I can understand it does not follow the right procedure and I see no reason to depart from what the Court of Appeal has stated.

In the High Court, there had been tendered by the 1st respondent and admitted documents exhibits “R” and “S” which were said to be earlier judgments in respect of the land. The appellants had argued that exhibits “R” and “S” are doubtful documents and impugned their authenticity, they were documents tendered by the respondents in this case to show that there had been earlier cases on this point, in which judgments given were not favourable to the appellants. What makes them doubtful The court below found on the existence of these documents which it relied to show that these documents could operate as res judicata. But what did the appellants say in respect of these documents. In a bid to prove or show that exh. S did not exist, the appellants’ brief states thus:

“The plaintiffs ancestors could not be a party to exh. S which is a non existence suit. Records of it are unavailable at the State High Court and the National Archives after very diligent search.”