Ayang Etaba & Ors V. Egong Ototo (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment)

The respondent in this appeal [as plaintiff] took out a Writ of summons against the appellants herein [as defendants] at the High Court of Cross River State, Obubra Judicial Division, (hereinafter, simply, called “the lower court”). He claimed certain declaratory and injunctive reliefs against them jointly and severally, pages 128 – 129 of the record.

Pleadings were settled, filed and exchanged. The matter, which was part-heard before Ilok J (deceased), commenced de novo before Ebutta J, following the demise of His Lordship, Ilok J (of the Blessed Memory).

In proof of his case, the plaintiff [now, respondent] testified. He tendered, as exhibits in support of his pleadings, three judgments he obtained against one Ogunni Okpa, first, at the District Court; then, at the Chief Magistrates’ Court and, lastly, at the Obubra Division of the High Court of Justice.

One Friday Egong Ototo, his only witness, testified in his favour in further proof of his case, page 118 of the record. On their part, the defendants [now, appellants] called two witnesses. They tendered exhibit “E” the evidence of one Eya Ejukwa in the previous proceedings before Ilok J (deceased). At the conclusion of hearing, the lower court, in its judgment of July 9, 2009, found in favour of the plaintiff [respondent in this appeal].

Dissatisfied with the lower court’s judgment against them, the defendants [now, appellants] appealed and formulated four issues for the determination of their appeal. These issues were framed thus:

ISSUES FOR DETERMINATION

1. Whether the trial Judge was right in treating the judgments between the Plaintiff and one Ogunni Okpa as previous judgments giving conclusive proof of the facts in dispute in the present case?
2. Whether the trial Judge was not in serious and gross error when his lordship concluded that the defendants did not trace their relationship to the land in dispute and did not defend in a representative capacity?
3. Whether the learned trial Judge was correct in holding that the issues of customary tenancy were raised only in the address of the counsel to the defendants and in the process not giving it the desired attention?
4. Whether the learned trial Judge properly evaluated the evidence adduced before the Lower court?

On his part, the respondent re-formulated the above four issues in a phraseology remarkable for its lucidity, concision and its lexical appeal, if not allure! Having regard to their pungency, apropos the principal agitation of the appellants in the Notice and grounds of appeal, we are more inclined to the respondent’s four issues which were couched thus:

(i) Whether the learned trial Judge was right to have placed reliance on the judgments between the plaintiff and one Oguni Okpa in respect of the disputed land as relevant documentary evidence in sustaining the plaintiff’s claims in Suit No HB/20/2004?

(ii) Whether the defendants had adduced credible and satisfactory evidence of traditional history tracing and linking them to the disputed land and whether the defendants defended the plaintiff’s claim in a representative capacity?

(iii) Whether the defendants, from the evidence on record, had led sufficient evidence of customary tenancy for the court to grant the defendants’ Counter Claim in this matter?

(iv) Whether the learned trial Judge properly evaluated the evidence adduced before the lower court?

FACTUAL BACKGROUND

In his said Writ of Summons, the plaintiff [now, respondent] claimed against the defendants/appellant jointly and severally that he was entitled to the Customary Right of Occupancy over a parcel of land known as “Oyiyeng farmland.” He made the case that he inherited the said farmland from his father, Ototo Obaji (one of the sons of Obaji Ikpe). He, also, claimed to have obtained judgment against one Ogunni Okpa over the said parcel of land in the Customary Court in suit No ODC/52/98. He equally got judgment in the High Court, Obubra Judicial Division, when the case in ODC/52/98 was appealed against. He conceded, however, that the said Ogunni Okpa was no relation of the appellants.