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 It further shows that the action was withdrawn against the 8th and 9th defendants.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?

On the other hand, the respondents’ brief contains three issues viz:-

(i) Whether the appellants proved their case and were entitled to the reliefs sought.

(ii) Whether the learned trial Judge made a correct and proper evaluation of the evidence.

(iii) Whether section 46 of the Evidence Act enured to the benefit of the respondent.”

The issues formulated in the respondents’ brief are more concise and adequate for the consideration of this appeal. However, bearing in mind the order I propose to make at the end of this judgment, it does not seem to me proper to wade into all the issues canvassed in the brief. Because of the proposed order, I intend to deal with the issue relating to evaluation of evidence.

The appellants complain of non-evaluation or improper evaluation of evidence. At p .19 of their brief, it was stated as follows:-

“The lower court however, did not comment upon or make any finding on the evidence of the PW1 who is the 1st plaintiff on record. Also no mention was made on the acts of ownership and possession which was pleaded and testified to by the applicants. The evidence of the PW4 was equally ignored.”

As earlier noted, the appellants relied in proof of their case on traditional evidence, acts of ownership and possession. Undoubtedly, these are three of the five modes of establishing title to land vide Idundun v.Okumagba (1976) 1 NMLR, 200. Evidence of traditional history where this is found to be cogent and established can sustain a claim for declaration of title to land. See F.M. Alade v. Lawrence Awo (1975) 4 SC 215 at 226; Olujebu v. Oso (1972) 5 SC 143 at 151, D.O Idundun v. Daniel Okumagba (supra), Atanda v. Ajani (1988) 3 NWLR (Pt. 111) 511. Where evidence of tradition is inconclusive, the claimant to title may still succeed on acts of ownership and exclusive possession pleaded. This appears to be the outcome of the decision of the Supreme Court in the case of Akunyili v. Ejidike (1996) 5 NWLR (pt.449) 381 at 406 where Onu J.S.C. delivering the leading judgment opined thus:-

“In the normal run of cases in which a plaintiff relies on traditional history to establish his case (the instant case stands in a class of its own where two other methods of acquiring title were pleaded and founded upon) once the traditional history, pleaded and given in evidence is found to be inconclusive by the court,… the rule (or test) in Ekpo v. Ita 11 NLR 68 and in Kojo II v. Bonsie supra would apply. The rule in the former case as stated by Webber J is that, if the evidence of tradition is inconclusive, the case must rest on question of fact see also Alade v. Awo (supra,). Indeed, in the case of Abdulai v. Ramatu Manue (supra), the West African Court of Appeal…held that a plaintiff could still succeed in an action for declaration of title on acts of exclusive possession and ownership even where traditional history was entirely lacking.The inescapable question of fact decided by the trial court in the instant case is that the appellant was in exclusive possession of the disputed land and that in the exercise of his acts of ownership, he had allowed the respondents to farm on a portion of the land; not the one trespassed …”

In his concurring judgment, Adio J.S.C. of blessed memory at p.419 of the record reasoned thus:-

“In this case, the crucial issue was whether the appellant was able to prove his case by means of the traditional history on which he relied. If he did, then judgment could be entered for him on the basis of the traditional evidence alone if the evidence of traditional history was uncontradicted or in conflict and found by the court to be cogent. See Ogbeide Aikhionbare & Ors v. Uyiekhen Omorogie Enogie & Ors (1976) 12 SC II at 27. However, if evidence of traditional history is not conclusive, then evidence, if any, on record of act of ownership or possession should be considered. See Kojo v. Bonsie (1957) 1 WLR 1223 and Motunwase v. Sorungbe (1988) 4 NWLR (pt. 92) 90. The legal position, was not, as the court below thought that prove (sic) of a claim for declaration of title by means of traditional evidence was mutually exclusive with other means of proving the claim. A plaintiff may adopt one or more of the ways of proving ownership, for example, traditional evidence or by means of evidence of acts of ownership or possession. The two or one of the other of them may be sufficient to sustain the claim. It is only where a plaintiff fails to prove his case by means of traditional evidence and also fails to establish it by means of evidence of acts of ownership and possession when those were the means pleaded and relied upon that the plaintiff’s case should be dismissed.”

In the instant case, the appellants in paragraphs 36 to 41 of the statement of claim pleaded their exercise of numerous acts ownership and possession over the land in dispute thus:-

“36 The ancestors of the plaintiffs occupied the land in dispute having deforested same and carried out various and numerous acts of ownership and possession unchallenged for very many years, period long beyond living memory, from generation to generation until the present generation of the plaintiffs.

37. The ancestors of the plaintiffs used the land in dispute for farming, they built dwelling houses and dwelled therein on the land in dispute. They hunted animals in the forest on the land in dispute. They fished on the swamps on the land in dispute and on the Creeks and Rivers surrounding the land in dispute. They planted harvested palm fruits and tapped palm wine on the land in dispute and other economic trees like timber which they cut down and make their canoe from. They buried their deaths on the land in dispute.
38. The plaintiffs ancestors established shrines on the land in dispute where they used to worship and make sacrifices to their gods and those shrines are still there today as “OYOHO UKWO” shrines “A FA A YARA” shrines; “ISO NDEM NYAM” shrines; “EFE EKPE” shrines. These shrines are presently being sacrificed to by the plaintiffs.
39. The plaintiffs of the present generation, in addition to those things the plaintiffs ancestors did and established on the land in dispute for the plaintiffs to inherit, have done and established in recent times and some dating many years back, as follows:-

(a) Built their dwelling houses on the land in dispute and dwelt therein.

(b) Cultivate part of the land in dispute from year to year.

(c) Harvest palm fruits and tap palm wine from the palm trees on the land in dispute.

(d) Established Rubber plantation on part of the land in dispute.

(e) Own muddy stagnant water on the land in dispute for fishing purpose such as “Mbat Akwa Esuk Akpa Uruan”;

“Mbat Akwa Akpa Uruan”.

(f) Established Forest Reserve on the land in dispute where they cut timber for making canoe and building.

(g) Established a cemetry on the land in dispute called “Uduongo Okpo” where the plaintiffs bury their deaths.

(h) Built churches on the land such as Methodist Church, Apostolic Church and Mount Zion Church.

(i) Opened a modern market on the commercial area of the land in dispute called “Urua Esuk” Market.

(j) Built a primary school on the land in dispute.

(k) Built a road linking Uyo-Oron Road and passing through the commercial area of the land in dispute to the beach- sea port belonging to the plaintiffs. This road was taken over by the Local Government in 1956.

(i) Maintain a landing beach on the land in dispute where the plaintiffs take off to sea and land from sea. The plaintiffs collect landing fees on this beach from those off-loading bamboo, building sticks, raffia mats, timber and firewood and also from fishermen. Nobody had ever challenged the plaintiffs.

40. On the land in dispute are fresh water streams which are source of drinking water to the plaintiffs such as “Utibe Idim Inwang”, “Idim Nyam”, “Abombom” streams.
41. On the land in dispute also is a canoe manufacturing factory belonging to the 1st plaintiff.”

Evidence was led in support of the pleaded facts. At p.101 lines 5 et seq, the PW1 testified as follows:-

“Ndom Ebom had leased out a portion of Esuk Inwang to the Efik traders to build their stores. Throughout the period, nobody challenged Ebom for taking all these actions. Our ancestors had opened up a wide road from Ndom Ebom to Esuk Inwang Okon Eyo. In 1956, the Uyo Local Government took over that road and built three culverts…I am now the village head of Adorn Ebom and Esuk Inwang. We have opened up a market there and the Uyo Local Government Authority assisted us to open up the market…

We have shrines on the land. They are Aga Ayara, Oyuk Uquo and Efe Ekpe shrines. We have established a boatyard owned by Ndom Ebom people.

The people of Ndom Ebom had also built the Methodist Church, Apostolic and Mount Zion spiritual churches there. We have oil palm mills and raffia palm estate and forest reserve for timber. We have rehabilitated the Idun Inwang stream, Obombom and the Idim Eze or Idim Nyar streams…

There is a beach where we collect landing fees from fishermen who are not from Ndom Ebom. Our people live and carry out fishing industry there. They also construct canoes there. When our people die, we bury them there on that land. We have a common burial ground there. We call the burial ground Udi Mbansong or Uduongo Okpo. Our people fish in the Esuk Inwang Creeks and at Aqua Akpa Uruan. Our children attend schools there and we own the schools. It is the Esuk Inwang Primary School. We have pine plantation on that land and a rubber plantation too.

Nobody, even the defendants have never challenged us over the ownership of what I have enumerated above.”

See also the evidence of PW 2 at p.118 lines 19 et seq, the evidence of PW3 at p.124 lines 21 et seq.

With the numerous acts of ownership and possession as copiously pleaded and the evidence in support, the court below was duty bound to evaluate them having held that traditional evidence was inconclusive. Regrettably, he did not carry out that exercise. All that he did was to summarise the evidence. Surely evaluation of evidence is different from summarization of evidence. The function of a Judge in the assessment and evaluation of evidence involves two functions. Firstly, the matter of assessment in order to determine material evidence to be placed on the imaginary scale and secondly the evaluation of the evidence in order to determine in which side the scale tilts. The duty of appraising evidence given at a trial is pre-eminently that of the court of trial that saw and heard the witnesses and it is also the right of the court to ascribe values to such evidence. The Court of Appeal may not disturb the judgment of the trial court if it is supported by evidence even in the slightest degree just because it would have come to different conclusion on the same facts: See Ajumobi Ogundulu & Ors v. Chief E.O. Philips & Ors (1973) 1 NMLR 267 at 272; (1973) 2 SC 1; Mogaji v. Odofin (1978) 4 SC 81 at 4-96 Christopher Okolo v. Eunice Uzoka (1978) 4 SC. 77 at 86; Adeyeye v. Ajiboye (1987) 3 NWLR(Pt. 61)432 at451; Nzekwuv. Nzekwu (1989) 2 NWLR (pt.104) 373 at 393.

In the case in hand, the court below had failed to evaluate material evidence of numerous acts of ownership and possession allegedly exercised over the land in dispute by the appellants. By failing to do so, it omitted to consider material evidence on one of the appellants’ roots of title and this no doubt had occasioned a miscarriage of justice. Furthermore in his invocation of section 46 of the Evidence Act the court below with respect to Exhibit ‘C’ the previous court proceedings in C1/9/63 between the parties over a piece of land adjoining the land in dispute said at p. 218, line 6 et seq:-

“By the decision in C1/9/63, and all the documents tendered in this case and which I have already discussed above, I have come to the conclusion that there is a strong probability that the adjoining land, Esuk lnwang is the property of the Ekeya people.”

Had the court below appraised the appellants’ numerous acts of ownership over the land in dispute and found them credible, it is unlikely that it would have arrived at the same conclusion as it had done. Where a court of trial fails to make findings on the material and live issues of fact or approach the evidence called by the parties wrongly the appellate court has no alternative but to allow the appeal Karibo v. Grend (1992) 3 NWLR (pt. 230) 426.Where the appeal is allowed for failure to make the necessary findings, the appellate court will consider whether to order a retrial or to enter judgment for the appellant. Unless the court is satisfied that it is not a matter involving credibility of witnesses which it is in a vantage position as the trial court, the course open to it is to order a retrial. In the case in hand, the evidence on the appellants’ acts of ownership and possession over the land in dispute is clearly one that borders on the credibility of witnesses for which order of retrial is inevitable.

In the result, this appeal is meritorious. The judgment of Nkop J. as he then was delivered on 21/4/97 is hereby set aside. In its place, the case is remitted to the court below for a retrial by another Judge. The appellants are awarded the sum of N5,000.00 as costs against the respondents.

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Other Citations: (2000)LCN/0802(CA)