Archibong Edet Abiana & Ors V. Chief Oku Okon E. Antigha & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAFAARU MIKA’ILU. JCA (Delivering the Leading Judgment)

This is an appeal against the judgment of the Cross River State High Court delivered on 2nd February, 2009 at the Akpabuyo Division. By the said judgment the trial Judge entered judgment for the plaintiffs/Respondents and awarded them a declaration of title to land, damages for trespass and an order of perpetual injunction against the defendants/appellants.

Thus the respondents, as plaintiffs, sued the appellants at the High Court for (i) declaration that the respondents are entitled to a right of occupancy of a land called Esuk Okon, N7.1 million in special and general damages for trespass, and (iii) an order of perpetual injunction against the appellants. The pleadings on which this case was determined are the amended statement of claim filed on 18/12/06, the statement of Defence filed on 1/7/02 and the amended Reply filed on 25/4/05.

The land in dispute is an entire village called Esuk Okon in Akpabuyo LGA of Cross River State. The Respondents’ case is that the village was founded and named after their ancestor Okon Effiong Antigha and that the appellants were mere settlers in that village where the 3rd respondent is the village head. The appellants’ case, on the other hand, is that the village was founded and named after Okon Ekpiri Iwong and that the 1st appellant is the head of that village.

At the trial, it is alleged, the respondents called three witnesses and tendered nine exhibits, while the defendants called one witness and tendered one exhibit. The trial Judge closed the defence case, dispensed with final addresses by counsel, and adjourned the matter for judgment, which was delivered on 2nd February, 2009 in favour of the respondents. Aggrieved by the said judgment the appellants filed this appeal on five grounds.

However ground 4 has been abandoned. From the remaining grounds of appeal the sole issue for determination framed by the appellants is whether the traditional history evidence adduced by the plaintiffs/respondents in this case was credible and sufficient in law to establish the plaintiffs title to the land in dispute.

On the other hand, in the respondent’s brief of argument two issues have been formulated for determination. They read:-

(a) Was the trial Court right in its decision having regard to the pleadings and evidence adduced in the matter?

(b) Is the judgment against the weight of evidence?

The above issues have been argued together by the respondents. It is however clear that the sole issue formulated in the appellant’s brief will be sufficient to determine this appeal. The issue, as shown earlier, is whether the traditional history evidence adduced by the plaintiffs/respondent in this case was credible and sufficient in law to establish the plaintiffs’ title to the land in dispute.

It is the avernment of the learned counsel for the appellants that in this case the burden of proof was indisputably on the respondents as plaintiffs to establish their title to the Esuk Okon land in dispute by any of the five ways known to law. That in this regard the respondents chose in their pleadings and evidence to establish their title by traditional history evidence. He has argued that it is settled law that a party relying on traditional evidence must in order to succeed adduce consistent evidence showing (i) the person that founded the land, (ii) how the land was founded and (iii) the names of successive trustees on whom the land devolved from the founder down to the claimants. Reliance has been made on NRUAMA VS. EBUZOEME 2007 ALL FWLR (pt 347) 723; 738-739. That on these essential requirements the respondents pleaded in paragraph 3 of their amended statement of claim that their grand father, Okong Effiong Antigha, founded the land by deforestation. That the respondents’ PW 1 testified as follows:-

“Am the grandson of Okon Effiong Antigha…. Our grandfather deforested the land of Esuk Okon and lived there with his children” (page 45 of the record)

That, however, the respondents’ P.W 3 gave a completely different version of how the land was founded in the following words:

“The people of Ifiang gave him (ie Okon Effiong Antigha) the land. Obong Nyok Effiong Nsung gave him the land” (Page 78 of the Record)