Registered Trustees Of The Apostolic Faith Mission & Anor V. Umo Bassey Eyo James & Anor. (1987) LLJR-SC

Registered Trustees Of The Apostolic Faith Mission & Anor V. Umo Bassey Eyo James & Anor. (1987)

LawGlobal-Hub Lead Judgment Report

KAZEEM, J.S.C. 

The plaintiffs who are the respondents in this appeal claimed from the defendants (now the appellants) a sum of N10,000.00 as damages for trespass at the High Court of South Eastern State holden at Calabar. The trespass was said to have been committed on a parcel of land at Ekpo Abasi Street, Calabar, as shown on the Survey Plan No ESP/880 of 7th October, 1961 reproduced on Survey Plan No. ESA/213/(LD) of 24th July, 1975.

The respondents also asked for perpetual injunction to restrain the appellants, their servants, agents and/or assigns, from repeating or continuing the acts of trespass complained of. Pleadings were ordered and duly filed and therein it was averred by the respondents that the land in dispute was situated at Efut Abua in the Calabar Division of the then South-Eastern State of Nigeria.

The respondents claimed that the said parcel of land was sold to one Bernard Eyo Boko alias Okonko Edet Oboko in 1938 by Muri Ekpo Effiom Oboko of Efut Abua as per a Purchase Receipt dated 12th November, 1938 which was tendered as Exh.2. Apart from the Muri, the Purchase Receipt was thumb-printed or signed by four other Chiefs from Efut Abua namely Effiong Edem Ambo, Edet Etim Ekpenyong, Idong Okon Ambo and Sigismund Ekpo Ene Asuquo.

In 1942, by a Deed of Conveyance dated 18th November, 1942, the sale was confirmed by those other four Chiefs all of Efut Abua of Calabar, for themselves and as representing the whole family of Efut Abua or household as per Exh.3. The land was subsequently sold by Okonkon Edet Oboko to Bassey Eyo James of Efut Abua, the father of the respondents in 1962, who cultivated it and planted economic trees thereon. The land was surveyed in 1961 as per the Survey Plan Exh.1 and a Deed of Conveyance dated 16th March, 1962 was made in favour of the respondents’ father as per Exh.4 which was duly registered. Thus the respondents and their predecessor-in-title remained in possession of the land in dispute and exercised thereon acts of ownership by cultivating it until 1974.

It is significant that one Chief Xavier Edem Edet Eyo (P.W.2) who knew about the transaction said under cross-examination as follows:-

“Muri Effiom Oboko was Efut Abua man. My late mother was also an Efut Abua woman. All people who signed the receipt are Efut Abua people. The land was sold on behalf of Efut Abua because the land belong to Effut Abua under a Declaration of Title in Suit No. 84/22/23 in the Supreme Court. ”

(Italics for emphasis)

In the meantime, Muri Ekpo Effiom Oboko of Efut Abua who originally sold the land in 1938 died and he was succeeded by Muri Edem Edet who, leased the said land to the appellants as per a Deed of Lease dated 29th October, 1974 – Exh.5. He did so as the Muri Munene and clan Head of the Efuts for himself and as representing the Efut Abua and Efut Okondo Combined Council for a period of 99 years. The appellants have since erected a building on the land.

D.W.3 who was the Muri Munene at the time of the trial in 1978 testified for the appellants and said that the whole of Efut land was controlled by the Combined Council of Efut of which the Muri was its head and that the Combined Council was that of Efut (apparently meaning Abua) and Ekondo. He testified further that if a parcel of land was to be sold in Efut. It would be sold by the Combined Council of Efut and Okondo and that no one else apart from the Council had any right or authority to sell Efut land. When this witness was cross-examined by learned counsel for the respondents, he admitted that he knew that in 1935 one Henry Cobham sued three persons at the Native Court of Calabar in respect of a parcel of land in Efut Okondo claiming joint-ownership of the land. See Exh. 6, which is the proceedings and judgment in Suit No. 309/35 in the Native Court of Calabar between Henry Cobham as Plaintiff and Abasi Okon Edem Anating, Efiong Ededem Okon Edem Anating, and Edet Edem-Odo Okon Edem Anating for themselves and on behalf of Efut Okondo of Calabar District, as Defendants.

The claim was for a declaration that the plaintiff was a joint owner of all parcels of land belonging to Efut Okondo in accordance with Supreme Court Judgment dated 19/6/31 and that the right, title, and interest of each party into and over the said land were in every respect the same. The claim was admitted by the 1st defendant, but opposed by the 2nd and 3rd defendants but judgment was eventually entered for the plaintiff for the declaration sought. This exhibit was tendered to show that in 1935 there was a separate Efut Okondo Community which was sued in respect of Efut Okondo land. Moreover in further cross-examination, D.W.3 also said:-

“Efut and Ekondo combined Council was established in 1921. It is not true to say there was not such a Council before 1944. We came together for the purpose of a case. The case was between Efut Abua and Abakpa. I know the late Ntoe Ika Ika Ogua. I know Etubom Edem E. Adam. I know Etubom G. D. Henshaw, I know late Ntoe Nyong Eyo. I know Chief Effiom E. Adam. I knew Chief Effiong Bassey Abiat. I knew Chief J. E. Andres. In 1944 there was a dispute as to the headship of Muri following the death of the former Muri. The above-named persons looked into the matter and signed a Report.” Dr. Arikpo has no objection to the Report being tendered – Exhibit 7. “It was as a result of Exhibit 7 that Nyong Asuquo Odionka was elected as a Muri.” Exhibit 7 is the Report of a Sub-Committee appointed to inquire into the dispute for the election of a Muri for both Efut Abua and Efut Okondo in 1943. Some of the findings of that Sub-Committee are as follows:-

“On the 26th March, 1943, Efut Ekondo and some of the people of Efut land and also the strangers occupying Efut land met to elect a Muri for the two towns. At that meeting Efut Ekondo people announced that there is a dispute among them and for that reason they will not elect a Muri for Ekondo. They gave the names of two Abua Chiefs. i.e Asuquo Nyong Odionka and Efiong Edem Ambo, for election as Muri for Efut Abua, so that who-so-ever is elected may act as Muri for Efut Ekondo for the the time being. 128 persons elected Asuquo Nyong Odionka and 10 elected Efiong Edem Ambo. Chief Asuquo Nyong Odionka was therefore appointed Muri for Efut Abua and Acting Muri for Ekondo, and Chief Efiong Edem Ambo as an Assistant or Deputy Muri.

2. The reasons given are:-

(1) That Efut Ekondo and Efut Abua are now one.

(2) That Chief Asuquo Nyong Odionka is from the blood.

Some of the Efut Abua people who refused to attend the election, protested, and this was done long before the election took place. They did so on the following grounds:

(1) That Efut Abua is an independent town other people cannot elect Muri for Abua.

(2) That since the establishment of the Calabar Council both towns do their businesses independent of the other”.

(3) That it was not the custom to unite in electing Muri.

(4) That they have united some time ago in pursuing land case, but they have separated long ago, and that was when Efut Ekondo sued them, for separation, which was granted by the Court .

(5) That Chief Asuquo Nyong Odionka, the Muri elect, is not from the blood.

(6) That they have informed the said Combined Council before hand that any person from Abua who joined them in the election, did so on his or her own, not with the consent of the Abua Town people or Council.

4. The Sub-Committee observed the following:-

(a) That as far back as 1933 Abua and Ekondo have been doing their businesses independently i.e. Election of member for Calabar Council, done separately – Exhs. “A – F” confirmed this. Tax collection, separate Nominal Roll. Exh. “K” confirmed this. From that very 1933, Muris appointed independent of the other were:-

By the Ekondo – Efiom Duke Ephraim, Efiong

Ededem and Ahasi Okon Edem.

By the Abua – Ekpo Efio Oboku.

Efut Combined Council (Deft.) put in no documentary evidence to show that they were united in appointing them, but on the other hand the Efut Abua (Comlt) put in documentary evidence, which the Sub-Committee is satisfied that the appointment of Muris were done separately, each informing the other afterward of the result of election – Exhs. “G – J” confirmed this.

(b) That on the 29th of February 1932 Efut Ekondo sent a letter to Efut Abua people, paragraphs 9 and 10 read thus:-

‘”9 There is no reason whatever for any Efut Free Borns as a whole should have any interference to Ekondo Town or deeds touching our lands.

10. We also are by ourselves independent and not to enforce any rules over our town any more. Chief Ekpo Efiom Oboko. Madam Atim Edem Okon Mbukpa and others, Chief Efiom Asuquo Efiom, Chief Efiong Edem Ambo, Chief Edet Etim Ekpenyong and others as free born of Efut Abua should please note this paper and inform the rest”.

Exh. “R”.

(c) That in 1936 Ekondo sued Efut for separation that each town should see after its own affairs independently, with injunction restraining Efut Abua from further interference. The case was decided in favour of the Efut Ekondo and up till now that judgment is still binding, therefore no unity until that case set aside. Exh. “L”.

(d) That on the 1st of November 1940 Muri Abasi Okon Edem of Ekondo made a suggestion for re-union to the Efut Abua and Ekondo people at a meeting of the Efut Town Council. This was agreed by the people present on the following conditions:-

1. That Efut Ekondo people should first of all sue for the cancellation of the case of separation referred to in (c)
2. That both parties should make a bye-law against future disappointment.

3 That an oath be taken by the Heads of the two towns, but till now these conditions have not been fulfilled, therefore no unity. (see page 13 of this proceedings.)

(e) That the Combined Council started in 1941 when the Muri referred to in (d) had died. It is composed of some of the Ekondo and Abua people. At the first meeting of this Combined Council, instead of fulfilling the conditions referred to in (d) the first thing they said was to do away with the two principal men of the Abua in the persons of Chief S.E.E. Asuquo and Mr. D.E. Asuquo, vide Exh. “U”. These two men and some of the Abua people stood firm and said that unless those conditions are fulfilled they will not combine.

(f) That in the evidence given by Chief Asuquo Nyong Odionka the Muri elect, he stated that the election of Muri is done now-a-days by the Council (see page 12 of this proceeding, 11 lines from the bottom). If that is the case, then this election cannot stand because the President, the Secretary and some of the important members of the Efut Abua Council were not present. A circular letter inviting them to the meeting of election was sent, they replied that it is not customary for the two towns to meet and elect a Muri for one. That Ekondo had elected 3 Muris (as in para 4 (a) which they were not present, but were informed of the results afterwards – vide Exhs. “G – J” and further warned them that the Abua people who attended did so on his or her own, not with the consent of Abua Council, vide Exh. P”.

There was no dispute as to the area of the land or its Identity but it seems quite clear from the foregoing evidence that whereas the respondents relied on the Purchase Receipt of 12th November, 1938 – Exh.2 – and the subsequent Deeds of Conveyance dated 18th November, 1942 and 16th March, 1962 respectively (See Exhs. 3 and 4) obtained from Muri of Efut Abua and other Chiefs of Efut Abua in support of their title, the appellants relied on the Deed of Lease dated 29th October, 1974 granted by the Muri Munene and the Combined Council of Efut Abua and Efut Ekondo as their authority for going on the said land. It was also the appellants’ contention that the Muri and his people of Efut Abua had no right to alienate any Efut land.

After reviewing the evidence adduced at the trial, and considering the addresses of learned counsel, the learned trial Judge found in favour of the appellants and dismissed the respondents’ claims. Inter alia, he found as follows:-

“In the face of these authorities and taking into consideration what D.W.3, Muri Munene Umo Effiom said that the whole of Efut land is controlled by Combined Council of Efut and Ekondo which has the Muri at its head, no one side of Efut -Abua or Ekondo or individuals can sell Efut land. I hold the view that the vendors in Exhibits 2 and 3 did not have authority to sell. It is true that the Muri took part in signing Exhibit 3 but the transaction was by representatives of the whole family of Efut Abua. There was therefore no sale by the Combined Council with the Muri at its head. It follows that if the vendors had no authority to sell, the vendors in Exhibits 2 and 3 did not own what they purported to sell and as, no one could give what he does not possess, title in the land did not pass to Bernard Ene Boco. I had earlier held that Exhibit 3 was not even registered. If Bernard Ene Boca did not have title by that purported sale, then it necessarily follows that the purported sale by him to Hassey Eyo James the deceased father of the Plaintiffs (Sic) was invalid. It is true that the transaction entered into here as shown in Exhibit 4 was registered according to law. But mere registration of a conveyance does not confer title which is otherwise defective. See Section 23 of Land Instruments Registration Cap. 72, Laws of the former Eastern Nigeria 1963 which provides as follows:

“Registration shall not cure any defect in any instrument or subject to the provisions of this Law, confer upon it any effect or validity which it would not otherwise have had”

The registration (Exhibit 4) was therefore ineffective. Title, as I had said earlier, did not pass to the Plaintiffs’ father and the Plaintiffs as successors-in-title derived no title either.

The effect is that Exhibit 5 is the only registered interest in respect of the land in dispute and it confers a legal title on that land on the defendants. The defendants’ title is therefore a better title than that of the Plaintiffs if the Plaintiffs had any title at all: See Dr. Abiola Akerele v. A.J. Atunrase (1969) 1 ALL NLR page 201.

Having regard to all the foregoing, it is my view that the defendants are in possession of the land in dispute by virtue of Exhibit 5. Being in possession of the said land they could not commit act or acts of trespass complained of. This action therefore fails and is hereby dismissed.”

Against that decision, the respondents appealed to the Court of Appeal in Enugu and the dominant issue for consideration throughout the hearing of the appeal was: When was the Combined Council of Efut Abua and Efut Ekondo established so as to give it the right and authority to deal with all Efut land After considering the whole evidence vis-a-vis the testimony of D.W.3, and the Report – Exh.7 – this question was answered by the Court of Appeal thus:-

From the foregoing it is historically beyond doubt that the Combined Council under the single Headship of one Muri came into being sometime in 1941 and that prior to this time the two communities acted in all respects independently as separate entities. To conclude therefore as the learned Judge did that a transaction of sale of Efut Abua land by Muri of Efut Abua and his Chiefs to 1938 is invalid for reason that the sale was not by Combined Council seems untenable.”

The Court of Appeal went into the root of title of the respondents and after applying the decision in Ogunbambi v. Abowaba 13 WACA 222, it found that in so far as the said land was sold in 1938 by the Efut Abua people before the establishment of the Combined Council, and since the purchaser went into immediate possession and that possession was undisturbed until 1974 when the appellants went on the land, the title of the respondents was superior to that of the appellants. Accordingly the appeal was allowed, the judgment of the High Court was set aside and the claims of the respondents were granted with costs.

The appellants have now appealed to this Court against that decision on four grounds none of which raised the issue of inadmissibility of the Report – Ex. 7. Rather, the complaints in the grounds of appeal were that the Court of Appeal erred in law in overruling the learned trial Judge on the findings of facts made by him without any justification; that that court failed to apply the principle of law enunciated in the case of Ogunbambi v. Abowaba 13 WACA 222 to the sale in 1938 to the predecessor-in-title of the respondents; and that that court was wrong when it overruled a court of first instance on the finding of facts without positively showing that such finding was perverse.

Prior to the hearing of this appeal, an application was brought by the appellant for an order that the whole proceeding before the Court of Appeal was a nullity. It was contended by learned counsel for the appellant that most of the grounds of appeal argued in that court were on questions of mixed law and facts and that since no prior leave of that court or of the High Court was obtained to do so as required by Section 221(1) of the 1979 Constitution, it was incompetent of that court to have heard the appeal. It was however pointed out to learned counsel that the appeal to that Court was filed in February, 1979 when the 1979 Constitution had not yet come into operation and that in so far as the 1963 Constitution which governed appeals to that court at that time did not require that condition precedent for leave to be obtained, the point raised by learned counsel was untenable. Consequently, the point was abandoned.

The issue therefore for determination in this appeal has been rightly narrowed down to the question put by the learned Counsel for the appellant in his brief as: Who had a better title to the land in dispute between the appellant and the respondents The answer to that question in my view will depend on when the Combined Council of Efut Abua and Efut Ekondo came into existence. If the Combined Council was established after the sale of the land to the respondent’s predecessor-in-title as found by the Court of Appeal, then their root of title will not be defective. But if on the other hand, the establishment of the Combined Council was prior to that sale as contended by the appellants through their witness D.W.3, then the sale of 1938 would have been invalid; and consequently the subsequent sale to the respondents’ father would be null and void by reason of the fact that it was not made by the Combined Council. It was therefore because the Report of Inquiry – Exh. 7 – had resolved that issue that Otunba Awopeju, learned counsel for the appellants chose to attack it in his brief at a considerable length that the document was inadmissible. But as I have already said above, the question of inadmissibility of Exh.7 was neither made a ground of appeal in this court nor was it even raised during the hearing of the appeal in the Court of Appeal. As a matter of fact, the document was tendered at the trial during the cross-examination of the appellant’s witness D.W.3, to show that it was incorrect as testified by him that the Combined Council was established in 1921. And in answer to further question D.W.3 said that the two Efuts – Abua and Ekondo came together as a result of a case for which a Committee was set up which recommended the establishment of the Combined Council. For that reason, I am of the view that the issue of inadmissibility of Exh.7 was misconceived.

Let me now deal with the grounds of appeal canvassed by the appellants in this court.

The purport of Grounds 1 and 3 was that the Court of Appeal was wrong when it overruled the findings of fact by the trial court without positively showing that such findings were perverse but it seems to me that the complaint is misconceived. There is nothing in the judgment of the Court of Appeal to show that that Court overruled any finding of fact by the trial Court. Rather, what the Court of Appeal did was to evaluate the important evidence relating to the time when the Combined Council of the Efut Abua and Ekondo was established. That piece of evidence was available before the trial court when the Report of Sub-Committee appointed by the two Communities in 1943 – Exh.7 was tendered to contradict Muri Munene (D.W.3) who said it was established in 1921. A perusal of the record shows that when he was reviewing the evidence adduced by Muri Munene (D.W.3). on whose evidence the appellants relied in support of their title, the learned trial Judge referred only to the fact that the witness testified that it was only the Combined Council that could legitimately grant Efut land; and that those who sold the land to Bernard Boco as per the Purchase Receipt – Exh.2 – and later confirmed it as per the Deed of Conveyance – Exh.3 – without the authority of the Combined Council had no authority to do so and as such the sale was invalid. He ignored the probative value of Exit. 7 completely and said nothing about it throughout in his judgment. He merely assumed that the Combined Council had been in existence before the sale of the land in dispute to Bernard Boco in 1938 whereas reference to Exh. 7 shows that the Combined Council was established in 1941.

Moreover, it seems quite obvious from the tenor of Exit. 7 that prior to 1933, and up to around 1944, there had been two separate communities of Efut Abua and Efut Okondo who were doing their businesses independently of each other under two different Muris. That was also evidence in the proceedings before the Native Court of Calabar between one Henry Cohham and the Muri of Efut Okondo and two of his Chiefs in Suit No. 309 of 1935 wherein the plaintiff claimed to be a joint owner of all parcels of land situate in Efut Okondo and won the action: See Exh.6. The issue was not raised at that time that it was the Combined Council of the Efuts that had the right and authority over all Efut lands. It was barely three years thereafter (in 1938) that the incumbent Muri Ekpo Effiom Oboko of Efut Abua sold, as representative of Efut Abua people, the land in dispute situate at Efut Abua to Bernard Boco, an Efut Abua man. How then could that transaction be said to be subject to the control and authority of the Combined Council of the Efuts which was not then in existence

After 1933, efforts were made to unite the two Efuts, but they did not succeed and it was not until 1941, that the Combined Council was established: See paragraph 4(e) of Exh. 7.

If the learned trial Judge failed to evaluate that important evidence provided by Exh.7 which was not contradicted, how then can the appellants complain that the Court of Appeal overruled the findings of fact made by the Trial Court

It may then be asked: What is the duty of an appellate court in this regard

Again, this principle was reiterated by Kayode Eso, J.S.C. in the case of Chief Frank Ebba v. Chief Warri Ogodo & Anor (1984) 4 S.C. 84 when he observed at pages 98 to 100 thus:

” … the trite principle of law is that a court of appeal should be loathe to interfere with or reverse findings of fact made by a court of trial unless such finding” are perverse.

Now, the principles upon which a court of appeal would act have been well stated in the English case of Watt or Thomas v. Thomas (1947) A.C. 484 and approved several times by this court. Indeed, it is the duty of the trial court to assess witnesses, form impressions about them and evaluate their evidence in the light of the impression which the court forms of them.

For the court of appeal will be in a proper position to evaluate, as the trial court, the evidence which has been given in the case, for in such cases the matter in dispute has been completely narrowed down to inference that could be drawn from proved facts, without going through the rigour of credibility of witnesses. When we have this type of cases, the court of appeal should not shrink from the task of such evaluation or be inhibited therefrom, just because it is a court of appeal. – See Benmax v. Austin Motor Co. Ltd. 1955 A.C.370. See also Lion Building Ltd. v. M.M. Shodipe 1976 12 S.C. 135 as per Sir Udo Udoma J.S.C. at p.153.”

Also See George Okafor & 3 Ors. v. Eze Idigo III & 5 Ors. (1984) 6 S.C. 1 at p.36.

It was in accordance with the above stated principle that the Court of Appeal evaluated the evidence supplied by Exh.7 which the learned trial Judge ignored and consequently came to the conclusion that “it is historically beyond doubt that the Combined Council under the single headship of one Muri came into being sometime in 1941 and that prior to this time, the two communities acted in all respects independently as separate entities. To conclude therefore as the learned Judge did that a transaction of sale of Efut Abua land by Muri of Efut Abua and his Chiefs in 1938 is invalid for reason that the sale was not by Combined Council seems untenable.” I agree entirely with that conclusion which in my view was supported by the evidence adduced at the trial. Hence those two grounds fail.

The appellants’ complaint in Ground 2, was that the principle in Ogunbambi v. Abowaba (Supra) was not applied when it was held that by Exh. 2 and the contemporaneous letting into possession of the purchaser constituted a valid sale whereas Exh. 2 gave only a voidable sale. It may well be that the sale transaction of 1938 conferred only an equitable interest in the respondents’ predecessor-in-title; but the appellants had failed to show that they had no actual or constructive notice of that equitable interest when they took a leasehold interest of the land in 1974. In Dr. Joseph C. Okoye v. Dumez (Nig) Ltd. & Anor (1985) 1 N.W.L.R. 783, Bello J.S.C. (as he then was) dealt with the principle again at page 790 more clearly thus:

..It is trite law that where a purchaser of land or a lessee is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or the lessor, then in either case the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase of money or rent: Savage v. Sarrough (1937) 13 N.L.R. 141, Ogunbambi v. Abowaba (1951) 13 WACA 222, Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All N.L.R. 74, Oni v. Arimoro (1973) 3 S.C. 163, Rucknor-Maclean v. Inlaks (1980) 8-11 S.C. 1 and Obijuru v. Ozims S.C. 48/1984 delivered on 4th April, 1985, unreported yet.” Ed. Obijuru v. Ozims (1985) 2 NWLR, (Pt.6) 167 S.C.

In the instant case, there was evidence that after the sale in 1938, the respondents’ predecessor-in-title went into immediate possession of the land in dispute; and he continued in that possession until he sold the land to the respondents’ father in 1902. Even though the Purchase Receipt of 1938 (Exh.2) and the subsequent Deed of Ratification of 1511 1/42 – Exh.3 were registrable instruments under the Land Instrument Registration Law, but were not registered, there was evidence that the Deed of conveyance of 16th March, 1962 – Exh. 4 by which the land was sold by Bernard Boco to the respondents’ father, was duly registered, before the registration of the appellants’ Deed of Lease in 1974. If the appellants had therefore made necessary searches at the Land Registry, they would have discovered the interest of the respondents’ father in the land in dispute. But they did not. Moreover, there was evidence which was not controverted that the land was cultivated by the respondents and their predecessor-in-title and that when the appellants went on the land in 1974 to commence the erection of their building, they were not only challenged by the respondents who claimed ownership of the land but they also claimed to have been in possession of the land prior to the appellants. In spite of that challenge, the appellants continued their building operation because they were assured by the Muri who granted the lease that the land was communal land and that no one except the Combined Council had any right to alienate it. In the circumstances, the appellants could not, in my view, be heard to say that they had no actual or constructive notice of the respondents’ equitable interest before they went on the land in 1974. Ground 2 therefore also fails.

Ground 4 was the omnibus ground that the judgment was against the weight of evidence. But as I have already said, there was abundant evidence to the effect:

(i) that there was a prior sale of the land in dispute in 1938 to Bernard Boco by Muri Ekopo Effiom Oboko and his people of Efut Abua as per the Purchase Receipt – Exh.2;

(ii) that the said sale was ratified by the accredited representatives of Efut Abua by a Deed of Ratification dated 15th November, 1941;

(iii) that the vendors had due and exclusive authority at that time to deal with Efut Abua land before the establishment of the Combined Council of Efut Abua and Ekondo in 1941;

(iv) that prior to 1941 when the Combined Council came into existence, the people of both Efut Abua and Efut Ekondo were dealing with their respective lands independently of each other;

(v) that the purchasers went into immediate possession of the land after the sale in 1938 and that possession continued undisturbed until it was ousted by the appellants in 1974;

(vi) that even though the Combined Council and the appellants had notice of the presence of the respondents on the land, no action was taken to invalidate the voidable equitable interest already acquired on the land by the respondents.

The respondents had sued for trespass and injunction but the learned trial Judge based his decision on who was in possession of the land in dispute at the time of the alleged trespass. He did not however consider the fact that since both parties claimed to have been in possession, the issue for determination should have been: who had a better title between the parties Hence having regard to the preponderance of the evidence adduced by the respondents, as shown above, I am of the view that the learned trial Judge was in error in finding that the title acquired by the respondents was defective, because it was not granted by the Combined Council of the Efuts. In so far as that was also the finding of the Court of Appeal in allowing the appeal, ground 4 also fails.

On the whole, I am satisfied that there is no merit in this appeal and it is hereby dismissed with costs assessed at N300.00 in favour of the respondents.

SC.6/1985