Effanga Effiom Henshaw V. Effanga Essien Effanga & Anor (2008)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the judgment of Honourable Justice O. Ita, C.J. of the Cross River State High Court of Justice sitting at Calabar in Suit No. C/211/82 delivered on the 6th of March, 2005.

By an amended statement of claim dated the 21st of December, 1984, the appellant claimed as follows:

“1. A declaration that the plaintiff is the person in whom was vested immediately before the commencement of the Land Use Act, 1978, the piece or parcel of land situate and lying within the Municipality of Calabar between Ebito and Adam Duke Street and abutting on the said Adam Duke Street and Mayne Avenue of the annual value of N10.00.

2. A declaration that the plaintiff is the person entitled to apply for and obtain the grant of a statutory right of occupancy in respect of the aforesaid piece of land.
3. A declaration that the purported alienation of roughly the north-eastern half of the said piece of land (i.e. the land-in-dispute) by the 1st defendant to the 2nd defendant without the knowledge or consent of the plaintiff is wrongful, illegal and null and void.
4. N50, 000.00 (Fifty Thousand Naira) damages for trespass in that sometime before 1981 the 2nd defendant, purporting to acquire the said half of the plaintiff’s said piece of land from, and acting on the authority of the 1st defendant, cleared the same, erected a concrete wall and constructed a motor mechanic workshop thereon, and has refused to vacate the land inspite of demand by the plaintiff therefore, to the damage of the plaintiff.
5. Perpetual injunction to restrain the defendants, their servants, agents, and/or privies from remaining on the said half piece of land and from ever again interfering with the right, title or interest of the plaintiff to, in or over the said half piece of land.
6. An order of demolition of all and every structure on the said half piece of land within 14 (fourteen) days after the date of judgment in this suit or within such other period thereafter as the Honourable Court may consider convenient or expedient. At pp. 43 – 45 paragraph 18 (1) – (6).”

The case of the appellant at the court below is that the respondent, who was the 1st defendant at the court below, broke and entered his land without his consent. The appellant alleged that the land in his possession had been given to him by his grandmother under Efut Customary Law. The respondent on the other hand alleged that the land in dispute was granted to him by Effanga Offiong Family of Henshaw Town, Calabar. The respondent did not deny entry on the land in dispute and leasing same to the 2nd defendant (now deceased) who built on it. He alleged that the land is within the Effanga Offiong Family land. The learned trial Chief Judge at the conclusion of the hearing, without any evaluation and ascription of probative value to the evidence of the witnesses delivered the following judgment at page 158 of the record:

“It was the plaintiff who asserted that the land in dispute was outside Effanga Offiong land in Exhibit 1. The burden was on the plaintiff throughout and it did not shift.

The parties came to court armed with old court judgments as certified true copies. Both say that the land verged Brown is the bone of contention. Each party claims that what will determine this case is resolution of the issue whether Brown verge is outside Effanga Offiong Land or inside. It would appear that if it was within Effanga Offiong land, then the case will be decided in favour of the 1st defendant. It held that brown verge is outside Effanga Offiong’s land and Effanga Offiong could not have granted it to 1st defendant then the case goes in favour of the plaintiff.

I have not been able to find evidence in the whole avalanche that has proved the position above. It seems to me clear that the case ought to be and is hereby struck out without costs.”

Dissatisfied with the judgment the appellant appealed to this court on 3 grounds. The appellant in his brief of argument, dated 18/10/01 and filed on 19/10/01 formulated three issues for determination. The three issues are as follows:

“1. Whether there was evidence before the Honourable Court showing that the brown verge in Exhibit “3” tendered by the plaintiff is outside Effanga Offiong land.

2. Whether the burden of proof that the land-indispute is part of Effanga Offiong’s land was not that of the defendant who so asserted.
3. Whether the learned trial Chief Judge adopted the right approach in his consideration of the case by merely summarising the addresses of counsel without consideration of the evidence adduced before him.”

The respondent in his brief dated 5/12/01 and filed on the same day also formulated three issues for determination. The issues are as follows:

“1. What need be established in action for declaration of title to land when the boundaries are in dispute?

2. What are the general principle on which the courts act in order to grant decree of declaration of title?
3. Whether the finding of fact by the trial Judge was justified.”

The appellant on Issue No. 1 contended that contrary to the findings of the trial Judge that there is no evidence to support the case of the appellant, there is abundant evidence in the record in support of his case. Counsel for the appellant, Etubom E. E. O. Archibong, referred to the evidence of PW1 at page 84, lines 19 – 21; PW3 at page 89 lines 16 – 19; DW3 at page 102, lines 20 – 22. He also referred to page 168 lines 10 – 11 of the record and concluded that there was abundant evidence to answer the issue posed before the court and it ought to have given judgment in favour of the appellant.

On Issue NO.2, learned counsel for the appellant submitted that the onus of proof of whether the land in dispute was Effanga Offiong’s land clearly lay on the respondent who so averred and the lower court wrongly misplaced this burden on the appellant and this led to a miscarriage of justice. Relying on the provisions of section 35 to 57(1) and 146 of the Evidence Act, Cap. 112 counsels concluded that the respondent having failed to discharge the evidential burden judgment should have been given to the appellant to particularly having regard to Exhibits 1, 2 and 4. He referred to Osakwe V. Odi (1990) 5 SCNJ 19; Onobruchere V. Esegine (1986) 2 SC 385 and Bello V. Eweka (1981) 1 SC 101 in support of his submission.