Chief Effiong Ndem & Ors V. Effiong Odiong Nkpinang & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

By a writ of summons in suit No. HU/4/85 filed on 4th February, 1985, in the then Cross River State High Court holden at Uyo, the people of Ndom Ebon represented by seven persons as plaintiffs took out an action against another group of seven persons being representatives of Ekeya Okobo community as defendants joining as 8th and 9th defendants respectively the Commissioner of Police Cross River State Command and the Inspector-General of Police. As articulated in paragraph 50 of the statement of claim, the reliefs sought are in the following terms:-

“50. Where for the plaintiffs claim against the defendants jointly and severally as follows:-

1. A declaration that the plaintiffs are rightful owners of the land in dispute and are entitled to the Customary Certificate of Occupancy over the land in dispute called ‘ESUK INWANG OKON EYO’
2. N1,000,000.00 (One million Naira) being special and general damages for trespass.
3. A perpetual injunction restraining the defendants, their agents and assigns from committing any further acts of trespass over the land in dispute.
4. An order of this court ordering the armed policemen camped on the land in dispute by 8th and 9th defendants to vacate the land in dispute forthwith.”

A perusal of the record of appeal reveals that of the seven plaintiffs and seven defendants, only the four appellants and five respondents on record are the surviving ones, the others having passed on. It further shows that the action was withdrawn against the 8th and 9th defendants.

From the pleadings filed by the parties in prosecution and defence of the claims, the bone of contention between the parties is the right to the customary right of occupancy over the disputed piece of land. The Ndom Ebom people, the plaintiffs in their assertion of entitlement thereto relied on traditional history, numerous and maximum acts of ownership and possession spanning over a long period. It is their case that the land in dispute called “Esuk Inwang Okon Eyo” is situated in their village Ndom Ebom and delineated in their survey plan Exhibit ‘A’. Narrating how they came to own the land, they stated that the Uruan clan in Uyo Local Government Area to which they belong originated from a place called Uruan Akpa in Usakedet near the Republic of Cameroons. While there, a war known as Katanga war broke out. In consequence, their ancestors fled to Akani Obio Issiet also known as Akure Akpa Uruan where they lived for many years. Altogether the Uruan comprise of twenty families. After sometime, a dispute erupted between the two ethnic groups leading to another war. The cause of the dispute was the differences in the mode of their worship. Resulting from the war, the Efiks fled to and settled at their present location at Creek Town, Calabar while the Ibibios (Uruans) sailed in twenty boats to the various villages now constituting Uran clan. Ebom, their great grand ancestor was in charge of their own canoe. He first settled at a place known as Esuk Inwang but as mosquitoes and insect bites did not make the place conducive to human habitation, Ebom and his followers including Okon Eyo an Efik man moved to the present Ndom Ebom and settled there. After living for sometime at Ndom Ebom, the Efik man, Okon Eyo, applied for permission from Ebom to return to Esuk Iwang and settle. Leave was granted and Okon Eyo returned to Esuk Inwang and settled there. Others joined him and they all settled at Esuk Inwan till this day. That historical account explains why the name Esuk Okon Eyo was given to that disputed land. On acts of ownership exercised over the land in dispute, the plaintiffs referred to the road they constructed from Ndom Ebom to Esuk Inwang, a market, boatyard, Methodist, Apostolic and Mount Zion spiritual churches, oil palm mills, raffia palm estates and forest reserves they established on the land in dispute. They rehabilitated the Idim Inwan, Obombom and Idum Esa or Idum Nyan streams and also installed such shrines as Afe Ayara, Oyuk Uquo and Efe Ekpe which they worship.

In regard to the defendants acts of trespass, the plaintiffs narrated how in October, 1984, the defendants acting in collaboration with the police arrested one Anthony Akpan Essien who was appointed to collect landing fees at Esuk Inwang Okon Eyo. They drove away the plaintiffs from the land, demolished their buildings about ten in number, looted their property and harvested all their farm crops such as cassava, plantains, etc. They went into the fishing pond called ‘Ine Moses’ and set it ablaze and looted the property of the inhabitants at the pond. A report of this incident was made to the Police both at Uyo, Ndom Ebom and Adadia Police stations but the Police took no action alleging that they were acting on instructions from above, namely, Mr. Etim Inyang who at the material time was the Inspector-General of Police in Nigeria.

Like the plaintiffs, the defendants also relied on their traditional history and acts of ownership and long possession. According to them the first settlers in Esuk Inwang was called Odiong Ita, married to a woman who delivered twins. Because of that the Odiong family had to be ostracised in keeping with custom, to Esuk Inwang Ekeya. As time went on, other people such as Ayin Eyekan Ita Ita Inwang and king Eyo II from Creek Town went and lived there and the village was thereby developed. It is the defendants’ case that there is only one Esuk Inwang in the State. That Esuk Inwang is on Ekeya which is in Okobo Local Government Area. They call it Esuk Inwang Ekeya. They contended that there is nothing like Esuk Inwang Okon Eyo and that the area the plaintiffs call Esu Inwang Okon Eyo is what they the defendants call Esuk Inwang Ekeya. In support of their contentions, they tendered various documents such as the survey plan of the disputed land Exhibit ‘H’ proceedings in suit No.C/9/69 Exhibit C, a book on Development Administration, Edict No.7 of 1972, Exhibits D, D1 and D2, a book African on Population, Exhibits E, E1 and E2, Nigeria Chronicle Exhibits F, F1 F2 and F3, Plan No.JJ2/60 in suit No.C/9/69, Exhibit G and a letter captioned Misplacement of Esuk Inwang village in Cross River State map in Exhibit J. With the said documents the defendants contended that there was nothing like Esuk Inwang Okon Eyo but that the only Esuk Inwang is the one now in Ekeya. Finally, the defendants denied ever committing any or all the acts of trespass alleged against them. They also denied acting in collaboration with the Police in the alleged acts of trespass.

After due trial, the court below in reviewing the evidence on both sides held that the traditional histories of the parties were inconclusive but that the recent acts and facts disclosed in the evidence tended to support the traditional history of the defendants. Referring to Exhibit C, the proceedings in the previous suit No.C/9/63 or C/9/69, the learned trial Judge invoked the provisions of section 46 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 and concluded that Exhibit C raised a strong probability that the defendants are the owners of the land in dispute. He therefore held that the plaintiffs have failed to prove their case which was accordingly dismissed.

Dissatisfied, the plaintiffs hereafter referred to as the appellants lodged the instant appeal and in the process filed nine grounds of appeal. Pursuant thereto, they, by their counsel, filed a brief of argument in aid of the appeal. The defendants now respondents also through their counsel responded to the appellants’ brief. The appellants’ brief raised the following five issues for determination:-

“5.01 Whether the learned trial Judge was correct in holding that the plaintiffs have not discharged the burden of proof which lay on them in this action having regard to the pleadings and evidence.

5.02 Whether the court below was correct in holding that the testimonies of the PW2, PW3 are in conflict or contradicted the evidence of the PW1 so as to render the evidence of traditional history put forward by the plaintiffs worthless.

5.03 Whether the court below was correct in its evaluation and usage of the documentary evidence having regard to the nature of those documents which are not title documents.

5.04 Whether the learned trial Judge was correct in his application of section 46 of Evidence Act Cap. 112, Laws of the Federation 1990 to the facts of this case, having regard to the pleadings and the evidence before him.

5.05 Was there a correct and proper evaluation of evidence produced by the parties in this case by the lower court?