Effiong Odiong Mkpinang Vs Chief Effion Ndem (2012)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BA YANG AKA AHS, J.S.C.

This appeal arose from the judgement of the Court of .Appeal Calabar Division which reversed the decision of Nkop CJ sitting at Akwa Ibom High Court Uyo and ordered a re-trial on the ground of the non-evaluation of the evidence led by the respondents on their pleaded acts of ownership and possession. The plaintiffs/respondents had sued the appellants in a representative capacity in suit No. HU/4/85 seeking a declaration that they are entitled to the Customary/Statutory right of occupancy over the disputed land called ‘Esuk Inwang Okon Eyo’; N1,000,000.00(One Million Naira) being general damages for trespass and a perpetual injunction restraining the defendants, their agents and assigns from ever committing further acts of trespass over the said land.

The claim was denied. Pleadings were filed and exchanged and the parties called witnesses. The learned trial Chief Judge of Akwa Ibom State before dismissing the plaintiffs case found inconsistencies in the various versions of the traditional history given by the plaintiffs witnesses when he stated in the judgement:

“I have carefully considered the two sets of traditional evidence tendered by both parties to this suit. I must confess-that it is a bit difficult to test the credibility of the traditional history tendered by the plaintiffs. In the first place, there are some inconsistencies in their various versions”

(See page 210 lines 10-15 of the printed record of appeal).

The learned trial Chief Judge after pointing out what he considered to be the deficiencies in the plaintiffs evidence accepted the defendants evidence and held that all recent acts and facts disclosed in evidence tended to support the traditional history tendered by the defendants. He proceeded to dismiss the plaintiffs case with N1,500.00 (One Thousand, Five Hundred Naira) costs to the defendants.

The plaintiffs were dissatisfied with the decision of the learned trial Chief Judge and appealed against it to the Court of Appeal which allowed the appeal and ordered a re-trial. It is against the order of re-trial that defendants/respondents now appealed to the Supreme Court. The parties herein shall be described as defendants/appellants and plaintiffs/respondents respectively.

The appellants Notice of appeal filed on 2/8/2000 contained four grounds of appeal from which a lone issue was distilled from grounds 1 and 2 while grounds 3 and 4 were abandoned and struck out.

The issue formulated by the appellants is:

“Whether the Court of Appeal was right in holding that the trial court, in the circumstances of this case, ought to have evaluated the Respondents acts of ownership and possession given its rejection of the Respondents inconsistent traditional evidence”.

The respondents on their part raised two issues for determination as follows:

“1. Was the lower court right in holding that with numerous acts of ownership and possession as copiously pleaded and evidence led in support, the trial court failed to evaluate the traditional evidence of ownership as presented by the Respondents?

2. Was the lower court right in ordering a re-trial of the case owing to lack of examination and evaluation of the credibility of the witnesses and their evidence by the trial court?”

It was argued by the Learned Senior Counsel for the appellants that the finding by the trial court about the inconsistency in the traditional history given by the respondents was not set aside by the lower court herein. Learned Counsel then analysed the reasoning of the lower Court on the evidence of the plaintiffs which the trial court did not evaluate and which led the lower Court to order the re-trial and submitted that the lower court glossed over very significant issues embedded in the parties pleadings which would have made it to arrive at a different conclusion.

The issues he enumerated are:-