Chief Benjamin Bassey Usang & Ors V. Mr. Samuel Inah Okon & Ors (2016)
LawGlobal-Hub Lead Judgment Report
PAUL OBI ELECHI, J.C.A.
This is an appeal against the Judgment in suit No. HUG/32/2012 delivered by E. E. Ita J on the 13th day of June, 2014. The Learned trial Judge dismissed the Appellants’ claim. Dissatisfied with the said Judgment, the Appellants have now filed this appeal challenging the said Judgment of the Lower Court.
At the Lower Court, the Appellants filed a Writ of Summons on the 1st November, 2012 and claimed against the Respondents as follows:
(a) A Declaration that the Appellants (Claimants) are entitled to the customary right of occupancy of all that parcel of land known as and called Akamafe Family Land lying and situates at Ekakankpolo Farm Road in Old Assiga Town in Yakurr Local Government Area which was reserved for Akamafe Family members, bounded in the North, Agric, South with Health Centre/Akpasang Land, East by the part of that same land demarcated and given to Awamuah Family, West, Ayeova/Abobili Family lands respectively.
?(b) A Declaration that the Claimants (Appellants) are entitled to the customary right of occupancy of all that parcel of land Known as and
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called Akamafe family land lying and situates at Oboh/Secondary Farm Road in old Assiga Town in Yakurr Local Government Area which was reserved for Akamafe family members, bounded in the North by Aduwo family, south with the Aduwo family, East by Secondary School and West by Ayeora/Akasang/Akpong family lands respectively.
(c) Perpetual injunction restraining the Respondent defendants, their agents, servants, privies, hirelings cohorts etc. from further trespassing, entry, remaining on the part of Akamafe family land lying and situates at Ekakankpolo farm road, bounded in the North by Agric, South with the Health Centre, East by the part of that same land demarcated and given to Awambah family and West by Ayeora Abobili family lands respectively and the Akamafe Family land lying and situates at Aboh/Secondary farm land bounded as stated in claim 1(b).
(d) Special damages for the destruction of 200 Agric Palms at N10,000.00 per stem totaling N200,000.00; 150 Native Palm trees at N5,000.00 total is N1,100,000.00.
(e) General damages of N5million for trespass and damages to the Appellant family land aforesaid.
(f) Cost of action at N600,000.00.
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The facts of this case as presented by the Appellants is that the Appellants are the beneficial owners of the parcels of land in dispute which said land devolved to them by way of inheritance in accordance with the custom of Assiga people of Yakurr Local Government Area, Cross River State.
The Appellants’ land in dispute was acquired through original title by their forefather – one Omini Okon who is among the 12 families that first settled in Assiga in very remote antiquity. The said Okon was a great hunter and farmer; he acquired the various portions of land and farmed extensively on them by shifting cultivation with his family members. Upon his death, the headship and trusteeship of the land devolved on Ette Etene then to Etin Esen, Uket Ojong, Chief Ibor Usang and then to Chief Benjamin Bassey at present.
?During the reign of Ette Etene, the Respondents progenitor from Adadama in the present Abi Local Government Area who were displaced by the incessant tribal wars with the Ikwo people of Ebonyi State over farmland disputes crossed over from the other side of the Cross River to Assiga. The Appellants progenitor out of sheer benevolence and pity
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absorbed some of these immigrants into their family in the same way other families absorbed the remaining immigrants. The Immigrants absorbed to the Appellant family were known and called Awamuah of Akamafe. The Appellants and the Respondents who have no blood relationship have been co-existing peacefully with each family and still maintaining their identity.
Upon the death of Mark Uket Ojong coupled with the fact that there was no able person from Akamafe as of then to take over the mantle of leadership of Akamafe, Chief Usang from Awamuah was made an interim head of Akamafe while his brother, Chief Usang Eno was the head of Awamuah.
?Upon the death of Ibor Usang and upon installation of the 1st Appellant as the Head of Akamafe, Awamuah family who has now tested leadership of Akamafe family and are now used to discrimination on the sale of Akamafe land began formatting trouble to unseat the 1st Appellant as family head of Akamafe. The Appellants strongly resisted the acts of the Respondents. The Respondents who have enormous police connection now began to use the police to humiliate and exercise undue influence over the Appellants. The Appellants
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were coerced into signing Exhibit 6.
Upon the signing Exhibit 6, the Respondents went home jubilating and started the indiscriminate sale of the Appellants’ land. The Appellants had no option than to file this suit on the 1st of November, 2012 to assert their right over their family land.
The Respondents on their own side stated that though both the Appellants and Respondents come from the same maternal family in Assiga – Yakurr Local Government Area. The Appellants developed the tendency of exploiting and selling timber from trees fell from Akamafe farmland. The 2nd Appellant having been cautioned by the 1st Respondent as the maternal family head of the Akamafe maternal family got offended and started embarking on clandestine activities to frustrate the traditional administration of the 1st Respondent thereby setting the family in disarray. One of such instances of the 2nd Appellant was the publication of Exhibit 17 titled “original Akamafe pulled out” dated the 1st of February 2009. As a result, the Respondent reported the matter to the police at the State CID, Calabar. At a time while they were still attending to the police, the Obol Lopon of Ugep
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and the Paramount Ruler of Yakurr had to arbitrate on the matter. The terms of settlement arrived was endorsed by all the parties i.e. Exhibit 6 dated 4th August, 2009.
To argue this appeal, the Appellants formulated one issue for determine viz:
“(1) Whether from the state of the pleadings and the evidence adduced the trial Court properly and adequately evaluated the traditional evidence adduced by the Claimant (Appellant) in support of their case?”
Learned Appellant Counsel submitted that the trial Court failed to evaluate the traditional evidence adduced by the Appellant in support of their case and thereby reached a wrong conclusion. According to Learned Appellant Counsel, harmonious reading of paragraphs 3, 4, 5 and 6 of the statement of claim and paragraph 8 of the Appellants joint Reply to the Statement of defence clearly show that the Appellant acquired the land in dispute through original ownership as one of the twelve original families that make up Assiga.
?The Appellant family which is among the twelve original families to settle in Assiga acquired the land in dispute through original ownership as first settlers as stated in
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paragraph 8 of the Appellant joint Reply to the Respondents statement of defence. See OLUBODUN v. LAWAL (2001) 42 WRN 25.
Even with the above, Learned Counsel contended that the trial Court ignored the entire pleadings of the Appellant and the evidence led and took into consideration only paragraph 6 of the statement of claim as the basis for his Judgment without looking at other paragraphs of the statement of claim and evidence led as well. SeeDURU VS. NWOSU (1989) 4 NWLR (PT. 133) 24. The trial Judge did not put the evidence of both parties on the imaginary scale to see where the scale of justice will tilt to. See MUSA V. YARIMA (1997) 7 NWLR (PT. 577) 17; NDULUE V. OJIAKOR (2013) 53 NSCQR page 28. He then urged the Court to allow the appeal and set aside the Judgment of the Lower Court.
The Respondent on his own side formulated a lone issue for determination:
“Whether the Learned trial Judge properly dismissed the claim of the Appellant to the effect that he did not prove his case upon the evidence placed before him in this case?”
?Learned Respondents Counsel stated that from the pleadings and evidence, the Appellants relied on
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traditional history to prove their title to the farmlands. However, in law, he contended that once a party pleads and traces his root of title in dispute over land to a particular source and his averment is challenged, that party to succeed as the Appellant in this case must not only establish his title to such land, he must also satisfy the Court as to the title of the source from which he claimed to derive his title to the land. Where the line of succession is not satisfactorily traced and leaves gapping gaps or nexus which are not established, such a line of succession will be rejected. See AWODI V. AJAGBE (2008) 1 FLWR (PT. 400) 7431.
In the present case, the Appellants in their pleadings and evidence in Court merely doled out the names of their supposed predecessors without stating who among them founded the farmlands in dispute and in what manner he founded the farmlands. The Appellants pleadings and evidence mentioned are “Omini Okon” who according to them acquired the various portions of the land and farmed extensively”, without showing how, in what manner he acquired all the various portions of land. See EZINWA VS. AGU (2004) 3 NWLR (PT. 861) 431
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at 435. The Appellants have failed to prove their source of title, their case will fail. The law he stated is that the Appellant has to establish his title to the land on the strength of his own case and not on the weakness of the Respondents case.
The Respondent he contended gave cogent credible and more reliable traditional history, asserting the Akamafe Family ownership of the farmlands as could be seen in their statement of defence paragraph 7 thereto.
The Appellants traditional history is full of material contradictions and its affect is that neither of the two sides of the story is worthy of any credit.
See CLOWN V. NIGERIAN NAVY (2007) 15 WRN 77. The Appellant did not establish the identity of the land in dispute and his other evidence on other issues may well be hanging as there will be no land upon which to ground a declaration of title in his favour. See OLOWU V. B. S. Ltd. (2010) 2 NWLR (PT. 1178) 310 at 318.
On the evaluation of evidence, Learned Respondents Counsel submitted that the trial Judge properly evaluated the evidence adduced and placed before him before arriving at his findings and conclusions as could be seen from
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page 291 of the records of appeal. The Appellant who is alleging improper evaluation has not identified or specify the evidence improperly evaluated or not evaluated and has to show convincingly that if the error complained of had been corrected, the conclusion reached would have been different and in his favour. See NKEBISI VS. THE STATE (2010) 5 NWLR (PT. 1188) 4771 at 492. On the basis of the above, he urged the Court to resolve this issue in their favour and finally to dismiss the appeal.
The Appellants grouse in the lone issue for determination is whether from the state of pleadings and the evidence adduced, the trial Court properly and adequately evaluated the traditional evidence by the Appellants in support of their case. The first thing to do therefore is to answer the issue one way or the other. In doing so, I wish to refer to the case of GILBERT ONWULED & ORS. V. MICHAEL EDIALIA & ORS. (1989) 1 NWLR (PT. 96) 1282 (1989) 1 NSCC 65, 1 SC (PT. 11) 1 where the Supreme Court of Nigeria per Oputa JSC stated:
“To evaluate simply means to give value to ascertain the amount, to find numerical expression for etc. therefore, in deciding
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whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appeal is preferable to another set of facts given in an evidence by the other party the trial Judge after a summary of all facts, must put the two set of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference of credible to the other and then apply the appropriate law to it. This scale though imaginary is still the scale of justice and the scale of truth. Such a scale will automatically repel or expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence ‘what is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as the probative essence of the evidence.”
In the same manner as well, the Supreme Court of Nigeria in a more recent case of DIM v. ENEMNO (2009) 42 WRN 1, (2009) 10 NWLR (PT. 1149) 353 at 396 held as follows:
“The evaluation of evidence and ascription of probative value to the testimony of a
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witness is within the exclusive domain of the trial Court that heard and watched the witnesses testify before it. To determine whether a testimony has probative value, the Court takes into consideration whether the testimony is cogent, consistent and in accord with reason and in relation to other evidence before it. The Court also takes into consideration the demeanor, personality, reaction to questions under cross examination in the determination of the issue of credibility of a witness. A determination of the Court on credibility is almost sacred.”
By virtue of the authority of IDUNDUN v. OKUMAGBA (2000) 20 WRN 127; (1976) 9 – 10 NSCC 445, (1976) 1 NCR 200, 1976 NMLR 200; (1976) SC 227, title to land can be proved by the following five grounds:-
(1) Proof by traditional history or traditional evidence;
(2) Proof by grant or the production of a document of title;
(3) Proof by acts of ownership extending over a sufficient length of time numerous and positive enough that the persons exercising such act are true owners of the land;
(4) Proof by acts of long possession;
(5) Proof by possession of connected or adjacent land in
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circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute.”
In the instant case, the Appellants predicated their case on traditional evidence. According to them, the land in dispute devolved on them by way of inheritance in accordance with the custom of Assiga people of Yakurr Local Government Area of Cross River State. They claim that they acquired original title through their forefather Omini Okon who was among the twelve families that first settled in Assiga in very remote antiquity. As a great hunter and farmer, the said Omini Okon acquired the various portions of land and farmed there extensively by shifting cultivation with his family members. When he died, the headship and trusteeship of the land developed on Ette Etene, then to Etim Esen, Uket Ojong, Chief Ibor Usang and then to Chief Benjamin Bassey.
?It is trite in law that a party who pleads and traces his root of title in dispute over land to a particular source as in this case and his averment is challenged, that party to succeed as a Plaintiff in the action, must not only establish his title to the land, he must also satisfy the
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Court as to the title of the source from which he claimed to derive his title to the land. He should also lead evidence to show same without leaving any yawning sap. A Court has no jurisdiction to supply any missing link in the genealogical tree from progenitors to the Claimant. See MOGAJI v. CADBURY (1986) 2 NMLR (PT. 47) 393; ANYANWU v. MBERA (1992) 5 NWLR (PT. 242) 386; AKINLAYE v. EYIYOLA (1968) 2 NWLR 92; OWOADE v. OMITOLA (1988) 2 NWLR (PT. 77) 413 and ODI v. IYALA (2004) 4 SCNJ 35 at 54. Furthermore, the weakness of the defendant’s case in a land matter touching on declarations does not assist the Plaintiff’s case. He sinks or floats with his case. See ANIMASHAUN v. OLOJO (1991) 10 SCNJ 143.
In this matter, the Appellants in their pleadings and evidence in Court merely mentioned the name of Omini Okon who was the first to settle there from time immemorial without stating the manner in which he came to settle on the land in dispute. The litany of successor and predecessors in title without mentioning how they came to be in possession of the land does not advance the case of the plaintiff in proving his title to the land in dispute.
?It is not
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sufficient for a party who relies for proof of title to land on traditional history to merely prove that he and his predecessors in title had owned and possessed the land from time immemorial. He must also prove:
(i) Who founded the land?
(ii) How the land was founded?
(iii) The particulars of the intervening or successive owners through whom he claims.
The above can be deciphered from the decisions on PIARO VS. TENALO (1976) 12 SC 31; OHIAERI VS. AKABEZE (1992) 2 NWLR (PT. 221) 1; ANYANWU v. MBARA (1992) 5 NWLR (PT. 242) 386; MOGAJI V. CADBURY (1985) 2 NWLR (PT. 7) 393.
The Appellants have not adduced any evidence on how the land was founded by the said Omini Okon. The law is loud and clear that the burden of proof of title to the land in dispute remains always on the Appellant as there is no counter-claim from the Respondents. Having failed to discharge that burden of proof, his case is not substantiated and he cannot obtain Judgment. Reliance is hereby placed on the following cases – G. B. OLLIVANT LTD. V. KORSAH (1941) 7 WACA 188, ADESANYA V. EWEDEMI (1962) 2 SCNLR 257; (1962) 1 ALL NLR 320; ADENLE V. OYEGBADE (1967) NMLR 136;
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AKINOLA V. OLOWU (1962) 1 SCNLR 352. The Appellants have therefore failed to establish their case and the result is that their appeal will be dismissed.
The identities of the farmlands were not properly established by the Appellants at the Lower Court. The law is settled on the principle of land that a party who seeks title to land vide any of the five ways seeking such, must prove the identity of the land in respect of which he seek remedy. The reason for the desirability of the establishment of the identity of the land in dispute is to ascertain the property involve in a litigation so as to avoid the granting of a piece of land or part thereon to a party who is not entitled to it. The Appellants therefore failed to place and lead credible evidence to establish succinctly the identity of the land in dispute and consequently there will be no land upon which to ground a declaration of title sought in his favour. Reliance is hereby placed on the case of KARIMU v. LAGOS STATE GOVT. (2012) 5 NWLR (PT. 1294) 620 at 625; ELIAS VS. OMOBAVE (1982) 5 C 25 at 57 – 58.
In ADONE v. IKEBUDE (2001) 14 NWLR (PT. 33) 385, the Supreme Court stated that “the land in
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dispute” in any claim for declaration of title to land is none other than that put in issue and claimed by the plaintiff and in respect of which the parties join issues. Where a Claimant fails to plead and establish the identity of the land in dispute to which his clam of ownership or little relates, whatever evidence whether oral or documentary, he produces at the trial and however cogent credible the evidence might appear, it cannot in law ground a declaration of title in his favour. See JINADU v. ESUROMBI – ARO (2005) 14 NWLR (PT. 944) 142; ANSA v. ISHIE (2009) 15 NWLR (PT. 948) 210 and OTANMI v. YOUDUBAGHA (2006) 2 NWLR (PT. 964) 313).
The Appellants criticized the learned trial Judge alleging that the Lower Court avoided a consideration of the crucial paragraphs of the Appellants pleadings and the evidence led which resulted to the error of giving Judgment against the Appellant. I have earlier on in the course of this Judgment stated that the evaluation of evidence is the duty of the trial Judge and to make primary findings of fact. This duty unless it is shown not to have been done according to well laid down principles of law, an Appeal Court
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cannot interfere with such findings. See IRIRI v. ERHURHOBORA (1997) 2 NWLR (PT. 173) 252.
In the instant case, it is wrong to say that the Lower Court did not carry out proper evaluation of the evidence of the Appellant both in the pleadings and the evidence in Court.
Part of the Learned trial Judges’ Judgment show that he went to town in evaluating both the Appellant and the Respondent case before holding in his Judgment thus:
“The above pleading does not state how the Claimants’ forefathers acquired the land by the deforestation conquest, purchase or any howsoever. A Claimant who relies on traditional history for his root of title has to plead how the first person founded/acquired the land and trace an unbroken chain of inheritance from that original founder to himself. The clamant cannot prove title to the land they are claiming without such pleading. This is the bedrock on which evidence will stand….. It looks like without such pleading we have come to the end of the road in this case, the claims of the Appellants are accordingly dismiss…”
With a proper evaluation of the evidence or record by the trial Court, this Court therefore
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has no need to interfere and substitute its own views with that of the trial Court. Therefore, it is wrong as contended by the Appellant that the trial Court avoided the crucial paragraphs of his statement of claim and the evidence in Court during his evaluation of evidence. The Appellants complaining of improper or non evaluation of evidence in order to set aside the Judgment of the Lower Court, has the onus to:
(a) Point at the evidence not evaluated;
(b) Identity or specify the evidence improperly evaluated;
(c) Show convincingly that if the error complained of had been corrected, the conclusion reached would have been different and in his favour.
The Appellants have failed to show or establish how the evidence not properly evaluated according to him would attract the intervention of the Court of Appeal. Accordingly, I hereby resolve the lone issue in this appeal against the Appellant and hereby hold that from the state of the pleadings and evidence adduced the trial Judge properly and adequately evaluated the traditional evidence adduced by the Claimants in support of their case and found them unmeritorious to sustain this appeal. The
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appeal therefore fails and is accordingly dismissed. Consequently, the Judgment of the Lower court in suit No. HUG/32/2012 is hereby affirmed. I assess and fix the cost of this appeal at N50,000.00 in favour of the Respondents.
Appeal dismissed.
Other Citations: (2016)LCN/8892(CA)
