Archibong Ekpanya V. Grace S. Akpan & Ors (1988)

LawGlobal-Hub Lead Judgment Report

UWAIFO, J.C.A. 

It seems to me two main issues arose for a decision in the court below. The first is the correct procedure to be taken when a defendant decides not to call evidence in a civil case. In this particular case that will turn on the proper interpretation to be given to or the view to be taken of relevant court rules. The second is whether the plaintiff adduced sufficient evidence upon which the court could pronounce him the owner of the land in dispute and also whether he granted a lease of it to the defendants as Landlord relying on his alleged title thereto. The case was tried by Nkop,J.,sitting at the Uyo High Court. On 9th January,1985,he decided that the plaintiff failed to adduce sufficient evidence under Section 136(1) of the Evidence Act in order that any burden may shift to the defendants.

The plaintiff, now appellant, has attacked that decision. His counsel, Obong Ukot, has with extreme generosity in the advancement of argument done so in an elaborately presented Appellant’s Brief of Argument and Reply Brief. He did more than that. In oral argument before this court, he addressed at length. The Appellant’s Brief covers 35 foolscap pages typed double-line spacing and the Reply Brief takes 12 pages. Although the respondents’ counsel was not in court at the hearing of the appeal, the Respondents’ Brief of Argument filed by him earlier fill 28 pages. This is a case in which three witnesses testified and the entire evidence is in 12 pages of double and half line spacing.

There is no doubt that Obong Ukot was motivated by a desire not to leave out any conceivable argument in pursuing the appeal. I have gone through the entire proceedings and Briefs of Argument and had the advantage to listen to the oral argument in court. I must say with respect that Lord Loreburn, L.C., would have been disturbed, certainly with a sense of reproach – reproach on account of the love of the minutiae displayed -in the way this appeal was presented, if with far less to consider in the case of Addis v. Gramophone Company Limited (1909) AC 488 at 490, the Lord Chancellor was constrained to say in a sense underlain with indignation: “…it is difficult to imagine a better illustration of the way in which litigation between exasperated litigants can breed barren controversies and increase costs in a matter of itself simple enough.” The only comfort perhaps I derived in reading Obong Ukot’s Briefs was the high level of argument (sometimes abstract) and the paragon of language demonstrated therein.

I imagine the respondents’ counsel felt some compulsion to be detailed in his Brief (although he need not have) in order not to be left with a sense of disadvantage.

The claim by the plaintiff before the lower Court was for:

(a) A declaration of entitlement to a statutory right of occupancy over a piece of land situate at Ikot Ekpene Road, Uyo.

(b) The sum of N840 lease rent per annum from 1981 until judgment.

(c) Cancellation of the lease of the said land. The plaintiff claimed in his statement of claim to have bought the land in question from Robert Udo Akpan and Moffat Udo Ekong.

Although Robert Udo Akpan testified that he sold land along Ikot Ekpene Road when he was a young man, to the plaintiff, he himself did not disclose in any manner how he came to own the land he sold. He did not give the size of the land nor how much the plaintiff paid him, nor who witnessed the sale transaction.

The plaintiff himself in his evidence, contrary to his pleading, said he bought the land from the people of Ikot Ntuen Oku and gave their names as Etim Ituen, Moffat Udo Ekong and Robert Udo Akpan. It will be observed that Etim Iwen was not mentioned in his pleading. He did not say when this transaction took place, who witnessed it, the extent of the land at the time he bought it and how much he paid therefor. It was a portion of this land the plaintiff said he leased in 1974 to one S.A. Akpan, now late. The defendants are the beneficiaries of late S.A. Akpa’s estate. The 1st defendant is the widow while the 2nd and 3rd defendants are his daughter and son respectively.

The evidence is that S.A. Akpan built a warehouse on the land. After his death in 1980, his said beneficiaries built a house on a portion of it. It is said that they even leased another part of the land claimed by the plaintiff to one Alphonsus Udo who has erected a cold store on it.

The plaintiff claims in his evidence that Late Akpan paid him rent of N840 per annum until he died in February, 1980. When he was confronted in cross-examination with a letter written in June, 1982 through his solicitor asserting that the said Akpan paid rent in 1979 in advance up to December, 1982, the plaintiff had no plausible explanation except to say in re-examination “Since my lawyer had written so I have nothing to say. I take it as such, but I know it was 1980.” A witness called by the plaintiff testified that he introduced Late Akpan to the plaintiff to take a lease of the land from him.

The statement of defence does not disclose how S.A. Akpan came to be on the land in question. But it denies that the plaintiff is the owner of the said land and any knowledge of a lease transaction between the plaintiff and the said Akpan. It however, claims that Akpan was at all times in lawful and peaceable possession of the entire land in dispute. Throughout, there is no document or any memorandum in support of the said lease or even of the alleged ownership of the plaintiff. Apart from the assertion of the alleged lease, there is no shred of evidence, however tenuous, that the plaintiff at any time exercised any act of possession over the land.