Ekpenyong Ita Ekpenyong V. Joseph Ibok Effanga & Anor (2009)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

This is an appeal against the judgment of the High Court of Cross River State, Calabar Division presided over by Ita J. delivered on 30th January, 2006.

The Plaintiff now 1st Respondent commenced this action by Writ of Summons dated 5th December, 1989 in a representative capacity wherein he sued Affiong Ekpenyong who later died and was substituted by her attorney Ekpenyong Ita Ekpenyong and the Administrator of Cross River State. In paragraph 22 of the Further Amended Statement of Claim he claimed the following reliefs against the defendants jointly and severally:-

1. Declaration of title to all that piece and parcel of land situate at No. 15 Abasi Obori, Calabar, shown and edged red on plan No. JEJ/CA/2166.
2. A declaration that the said occupation of the said property by Affiong Ekpenyong is against the right and interests of the plaintiff and its (sic) co-beneficiaries, whilst under the management and control by the 2nd Defendant as well as wrongful and illegal.
3. An order of eviction against the 1st defendant from the property aforementioned.
4. An order of perpetual injunction restraining the 1st defendant either by himself or her agents, assigns, privies or successors in title from further entry into, or use however of the land which is the subject matter of this action and the bonafide property of the plaintiff and his co-beneficiaries.

After the exchange of pleadings, the parties called witnesses who testified and learned counsel filed written addresses. In a reserved judgment delivered on 30th January, 2006, judgment was entered in favour of the Plaintiff in terms of his further amended Statement of Claim. Being dissatisfied with the judgment of the lower court, the 1st Defendant now Appellant appealed to this Court in his Notice of Appeal dated 27/2/2007 containing five grounds of appeal (see pages 244 – 247 of the records).

The Appellant raised the following four issues in the appellant’s brief:-

1. Whether the judgment of the learned trial Judge is not against the weight of evidence.
2. Whether the learned trial Judge did not act without jurisdiction when he granted reliefs not claimed by the plaintiff and when the plaintiff’s representative capacity was not proved.
3. Whether the learned trial Judge did not misdirect himself when he found and held that the 1st defendant challenged the title of his landlord, the plaintiff, by representing himself to Effanga Offiong family as the owner of No. 15, Abasi Obori Street, Calabar, now No. 14.
4. Whether deceit is not a fact that should be proved beyond reasonable doubt and whether the learned trial Judge was not wrong when he held that Exh. ‘K’ was obtained by deceit.

The 1st Respondent raised objection on the competence of grounds 1, 4 and 5 in the Notice of Appeal. He said that Ground 1 which is an omnibus ground is only suitable in criminal cases but not applicable to civil cases and that ground 4 is incompetent as it is contrary to Order 6 Rule 2(2) Court of Appeal Rules, 2007 because the Appellant merely quoted a portion of the judgment without showing how the learned trial Judge misdirected himself. Learned counsel also alleged that ground 5 is incompetent because it does not relate to the decision of the Court both does it directly challenge the validity of the ratio decidendi of the judgment of the lower Court and that the Appellant raised a fresh point on appeal without obtaining leave of this Court. He urged that the grounds should be struck out together with the issues distilled from them.

The 1st Respondent also distilled five issues for determination. The issues are:

1. Whether the judgment of the lower court was against the weight of evidence.
2. Whether the learned trial Judge granted reliefs not claimed by the 1st Respondent (Plaintiff).
3. Whether the 1st Respondent (Plaintiff) could sue in a representative capacity.
4. Whether the learned trial Judge was correct when he held that the Appellant (1st Defendant) had challenged the title of his landlord, the 1st Respondent (Plaintiff).
5. Whether Exh. ‘K’ tendered by the Appellant, was rightly held to have been obtained by deceit.

The 2nd Respondent’s brief was deemed filed on 20/10/08 and raised the following lone issue, i.e.

1. Whether the Appellant has proved title to the land in dispute.

The Appellant filed a Reply Brief supposedly in answer to the Preliminary Objection raised by the 1st Respondent. He argued that the preliminary objection is misconceived and urged this court to overrule it.

Grounds 1, 4 and 5 in respect of which the preliminary objection has been raised are reproduced as follows;

“1. the learned trial Judge erred in law when he on 30th January, 2006 proceeded to deliver judgment in favour of the plaintiff which was completely against the weight of evidence thereby making the judgment unreasonable, unwarranted and altogether purported.

4. Misdirection

The learned trial Judge misdirected himself in law when he held thus:

“1st defendant ought to have notified the 2nd defendant to go to Effanga Offiong family and not for him to present himself to Effanga Offiong family as the owner of the land to be dealt with as such … In this instance, 1st defendant challenged the title of his landlord, the plaintiff, by presenting himself to Effanga Offiong family as the owner of No. 15 Abasi Obori Street, Calabar now No. 14 and by that deceit procured Exh. ‘K’ granting the land to him. Exhibit ‘K’ in that light cannot be allowed to stand at law being a product of deceit and misrepresentation. It must be struck down. In consequence therefore, I hereby declare Exh. ‘K’ a lease agreement between Effanga Offiong family and 1st defendant dated 15th January, 1978 null and void and of no effect whatsoever.” And this misdirection has occasioned grave miscarriage of justice.

Particulars of Misdirection

i) There was nowhere either in the pleadings of parties or their oral evidence where it was shown that the 1st defendant was claiming ownership of the property in dispute.

ii) The evidence rather showed that 1st defendant only went to the Effanga Offiong family when the plaintiff did not show any interest in that direction despite the fact that they were aware of the notices published by the Effanga Offiong family.

5. Error in Law.

The learned trial Judge erred in law when he found that Exh. ‘K’ was obtained by deceit even where there was nothing in the evidence showing, proving or establishing any deceit in the procurement of Exh. ‘K’

Particulars of Error

i) Deceit is a criminal allegation for which the law requires proof beyond reasonable doubt.

ii)There is nowhere in the whole proceedings where the plaintiff proved beyond reasonable doubt that Exh. ‘K’ was obtained DECEITFULLY.

iii) The finding of deceit by the learned trial judge was done without any basis in law.”

Ground 1 which learned counsel for the 1st respondent says is incompetent is complaining about the weight of evidence. In IBETO v. AMINU (2007) 5 NWLR (Pt. 1028) 446 this court held per Sanusi, JCA at 457 that “the way and manner the said omnibus ground was couched by the appellant is only suitable in criminal cases but not applicable to or suitable in civil cases. See NWANWATA v. ESUMEI (1998) 8 NWLR (Pt. 563) 650 at 680. The way it was couched is therefore alien and unsuitable in civil matters of this nature.”

In that case ground 2 which was declared incompetent was couched thus:

“The decision is altogether unreasonable, unwarranted and cannot be supported having regard to the claim and evidence.”

In the instant case the judgment which was given in favour of the plaintiff was being attacked because it was completely against the weight of evidence.

The Supreme Court in EZEBILO ABISI & ORS. v. VINCENT EKWEALOR & ORS (1993) 6 NWLR (Pt. 302) 643 explained what is meant by “the judgment is against the weight of evidence” at page 674 thus:

“When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him.”

Where a judgment is attacked on ground of being against the weight of evidence, the appellate court will seek to know the following, namely:-

a) the evidence before the trial court;

b) whether it accepted or rejected any evidence upon the correct perception;

c) whether it correctly approached the assessment of the evidence before it and placed the right probative value on it;

d) whether it used the imaginary scale of justice to weigh the evidence on either side;

e) whether it appreciated upon the preponderance of evidence which side the scale weighted having regard to the burden of proof.See MISR (NIG) LTD. v. IBRAHIM (1975) 5 S.C. 55 at 62; EGONU v. EGONU (1978) 11 – 12 SC 111 at 129; AGBONIFO v. AIWEREOBA (1988) 1 NWLR (Pt. 70) 325 at 339 and UKPE v NDON (1999) 6 NWLR (Pt. 606) 292 at 301. I find that Ground 1 is a competent ground of appeal even though the way it was framed is somewhat inelegant.

The attack on ground 4 is that the appellant merely quoted a portion of the judgment without showing in what respect the learned trial judge misdirected himself. In the particulars of misdirection, the appellant stated clearly that neither in the pleadings nor the oral evidence was it shown that the 1st defendant claimed ownership of the land. I think this is sufficient misdirection and there is nothing argumentative about it.

The learned trial Judge made a finding in respect of the procurement by the 1st defendant of Exh. ‘K’ from the Effanga Offiong family which resulted in the nullification of the said Exhibit and the order that 1st defendant should vacate the property. In the judgment the learned trial Judge held that the 2nd defendant was the visible landlord of the 1st defendant and if there was anything affecting the land, the 1st defendant ought to have reported to the 2nd defendant instead of going directly to the Effanga Offiong family and this action amounted to challenging the authority of the landlord. Consequently, he declared Exh. K as a product of deceit and misrepresentation. The appellant has challenged this finding in ground 5. He certainly does not need leave to appeal against that finding because it was a direct consequence of the finding that led to the judgment being given against the 1st defendant who is the appellant in the appeal. All the grounds raised in the preliminary objection fail and the said objection is hereby overruled.

Issues 1, 3 and 4 in the appellant’s brief are interwoven and their consideration will dispose of this appeal. The 2nd respondent admirably distilled a single issue which is whether the Appellant proved title to the land in dispute.

Proferring arguments in respect of the issues raised in the appeal, learned counsel for the appellant submitted that the learned trial Judge erred in law when he proceeded to deliver judgment in favour of the plaintiff not minding the fact that the weight of evidence did not support the plaintiff’s case.

He recounted the lease which the Appellant executed with the 2nd Respondent on the disputed property during the pendency of the appeal in the Supreme Court which was decided in favour of Effanga Offiong family and what led to the execution of Exh. ‘K’ with the Effanga Effiong family and submitted that decision of the learned trial Judge in holding that the 1st defendant/appellant challenged the title of his landlord, (the plaintiff) by presenting himself to the Effanga Offiong family as the owner of No. 15 (now No. 14) Abasi Obori Street, Calabar was a misdirection. Learned counsel referred to the definition of deceit in Black’s Law Dictionary Special Deluxe Fifth Edition, and submitted that the imputation of deceit in the procurement of Exh. ‘K’ was a criminal offence and the burden of proof as stipulated under Section 138 (i) Evidence Act was proof beyond reasonable doubt which was not discharged in the instant case. He therefore urged this court to allow the appeal.

The 2nd Respondent’s counsel supported the appellant by contending that the Plaintiff now 1st Respondent failed to prove his title to the land in dispute. He referred to the evidence adduced by the appellant and DW2 and submitted that in the face of the evidence before the lower court, the 1st respondent’s acts of possession cannot stand against proof of good title by the appellant. He therefore urged this court to hold that 1st respondent failed to prove his title to the land in dispute because the Abasi Obori family to whom the plaintiff traced his title of ownership had no title to the property and therefore could not give what they did not have.

Learned counsel for the 1st respondent argued that for the appellant to successfully allege that the judgment being appealed against is against the weight of evidence he is obliged to identify the evidence of both parties in proof of their case or disprove of the other party’s evidence which he has not done. He said the Appellant’s evidence that the land in dispute went to Ikot Effanga as a result of the judgment of the Supreme Court and therefore remained with Ikot Effanga for 30 years as per Exhibit ‘K’ cannot avail the appellant and the explanation of how the Appellant came on the land is unsatisfactory. The evidence according to counsel shows that the Appellant and Madam Affiong Ekpenyong were let into the land as a tenant by the 2nd Respondent who is an agent of the 1st Respondent. He argued that there is consistency in respect of how the 1st Respondent’s family came to own the land which remained unassailable, unchallenged and uncontroverted and the lower court was entitled to act on it. He contended that the learned trial Judge correctly held that the unilateral action of the appellant in approaching and presenting himself as the owner of No. 15 Abasi Obori Street, Calabar (1st Respondent’s adjudged property) to the Effanga Offiong family to allegedly attorn for occupying the 1st Respondent’s property amounted to a challenge to the 1st Respondent’s title to the said property. Being a tenant on the property, the appellant had no such right notwithstanding his claim of having notified the 1st and 2nd respondents that they ought to approach Effanga Offiong family for attornment. It follows therefore that Exh. ‘K’ obtained by the Appellant could not have vested him with the title to the land in dispute or convert from the position of a tenant to a landlord. He therefore submitted that the learned trial Judge did not misconceive the issues in controversy nor did he summarise the evidence of the appellant incorrectly or inadequately nor was there any mistake in the law applicable to the issue in the instant case. Having evaluated the Appellant’s evidence and having analysed critically Appellant’s Exh. ‘K’ it behoved the learned trial Judge to come to the inevitable conclusion in his judgment that the said Exh. ‘K’ was deceitfully obtained which was an obiter dictum.

The facts as revealed in the Further Amended Statement of Claim filed on 16/5/95 pursuant to order of Court given on 11/5/95 are as contained in paragraphs 4, 5, 6, 8, 11 and 16 of the said Further Amended Statement of Claim. In the said paragraphs the Plaintiff now 1st Respondent averred as follows:-

“4. The land which is the subject matter of this suit is all that piece or parcel of land situtate at No. 15 Abasi Obori Street, Calabar shown and edged in red on plan No. JEJ/CR/2166. At the trial the plaintiff shall rely on the plan.

5. The plaintiff avers that the land in dispute was the property of his father, Asuquo Effiong (now deceased) given to him by the Head of Abasi Obori family, Calabar in 1934.
6. The plaintiff also avers that he and the members of the family of the late Asuquo Effiong, whom he represents in this action, are members of both the House of Abasi Obori in Calabar and Effanga Offiong Henshaw Town also in Calabar.
7. The plaintiff avers that on the 1st day of February, 1957, his late father leased out the land in dispute to one Ayi Ayi Ukpanyang (now deceased) for a period of 20 (Twenty) years at the annual rent of #1.10. A copy of the lease agreement is hereby pleaded. The original copy was lost during the Nigerian Civil War.
8. The plaintiff avers that while the Lease Agreement of 1st February, 1957 between his late father and A. A. Ukpanyang earlier pleaded was still in force, the latter contrary to Clause 2 of the Lease Agreement, entered into an agreement on the land in dispute with the 1st Defendant, the said Affiong Ekpenyong.
9. After the plaintiff’s family laid a complaint to the Henshaw Town Council, about the illegal occupation of the land in dispute by the 1st Defendant the said Council wrote a letter to the 2nd Defendant. In the said letter, the Henshaw Town Council informed the Administrator-General that the said Council had about 10 or 15 years previously handed the land in dispute to Mrs. Ekanem Asuquo Effiong, the wife of the deceased, Corp. Asuquo Effiong. The said letter dated 25th January, 1988 was to further remind the 1st defendant that her stay on that land in dispute was illegal. The shall be relied upon during the trial.”

The appellant who was substituted for Madam Affiong Ekpenyong (deceased), 1st defendant, denied the claim and stated as follows in paragraphs 6, 9 and 16 of the Amended Statement of Defence:-

“6. The 1st Defendant further states that the plaintiff’s father, and thus the plaintiff is from the Abasi Obori family. The large tract or parcel of land for which the land in dispute forms part was a subject of litigation between Effanga Offiong family which resulted in a Supreme Court Judgment in Suit No. SC/278/71 of 6th November, 1973 in favour of the Effanga Offiong family. The 1st defendant hereby pleads the said judgment and shall contend at the trial relying on that judgment, that the plaintiff being in privity with the parties in the said Suit and as a member of Ekpo Nwa family, he is estopped from maintaining this action.

9. In further answer to the said paragraphs of the further amended statement of claim, the 1st defendant states that Madam Affiong Ekpenyong (deceased) entered into agreement with the Administrator-General in 1971 after one A. A. Ukpanyang who originally sub-leased the land to Madam Afiong Ekpenyong denounced his right over the said land. After the said agreement with the Administrator-General, Madam Affiong Ekpenyong who was also known and called Madam Affiong Akom Ayi continued to pay her rents to the 2nd Defendant. The 1st defendant pleads temporary receipt of 3rd August, 1971 and receipt No. A036434 of 11th January, 1972 – 1973. The said agreement and the sub-lease agreement entered into by Madam Affiong Ekpenyong with the Administrator General is hereby pleaded and the 2nd defendant is given notice to produce.
10. The 1st defendant denies paragraph 16 of the further amended statement of claim in its entirety and the plaintiff is put to the strictest proof. It will be contended at the trial that the purported letter from the Henshaw Town Council cannot be relied upon the same not having been issued by the said Council. The 1st defendant further states that following the Supreme Court judgment in Appeal No. SC/278/71 from the Calabar High Court Suit No. C/31/69 between Ikot Effanga family and Abasi Obori family, Madam Afiong Ekpenyong, the predecessor in title of the 1st defendant, was invited by the legitimate owners of the land, the Etinyin Effanga family to atone her title to the land which she timely did. In fact, the same invitation for the atonement of title to the Effanga Offiong family was also extended to other tenants on the entire land covered by the said Supreme Court judgment in Appeal No. SC/278/71. The deed of lease made the 15th day of January, 1978 together with the Survey Plan is hereby pleaded as evidence of payment. The 2nd defendant’s attention was drawn to this transaction between Madam Afiong Ekpenyong and Etinyin Effanga Offiong family by her solicitors in letters dated 31st August, 1987 and 29th September, 1987 which are all pleaded and notice is hereby given to the 2nd defendant to produce.”

The linchpin of the appellant’s case is the judgment of the Supreme Court tendered as Exh. ‘P’. In affirming the judgment of the High Court, the Supreme Court unequivocally declared:-

“We confirm the declaration that the Efana Offiong family is entitled to the exclusive possession of the Efut Abasi Obori land shown and delineated and verged pink in the Plan No. EPS/2401? LD made by Okon E. Eyo Licenced Surveyor and Architect dated 5th December, 1969, Exh. ‘A’ in the proceedings which Exhibit shall form part of the judgment of the High Court, Calabar in Suit No. C/31/1969, that neither the Appellant (Etim Edet) nor the Abasi Obori Combined Meeting has any right to sell, lease or otherwise alienate the said land or any portion of it without the consent of Efana Offiong family; that the (defendant) i.e. appellant is hereby perpetually restrained from doing any act on the land or alienating the said land or any portion thereof without the consent of the Efana Offiong family. This order of restraint extends to the Abasi Obari Combined Family Meeting…” (underlining mine for emphasis).

By the judgment in Exh. ‘P’, the Supreme Court laid to rest, the ownership of the Abasi Obori land and although the 1st Respondent and his predecessors-in title had been in occupation of the land as far back as 1934, this possession did not translate or metamorphose into true ownership of No. 15 Abasi Obori Street, Calabar.

The learned trial Judge was conscious of this fact and this is why he ordered the plaintiff/1st respondent to approach the Effanga Offiong family to regularise his father’s position on the land after striking down Exh. ‘K’ and declaring it null and void and of no effect. I find no rational in the judgment of the learned trial Judge in nullifying Exh. ‘K’ only to turn round and order the plaintiff/1st Respondent to approach the Effanga Offiong family to regularise his father’s position on the land when the appellant from the onset recognized the prior title of the Effanga Offiong family based on Exh. ‘P’ and advised the 1st respondent to take steps to regularise his title. It was when his advice was not heeded that he then approached the Effanga Offiong family to atone for his holding leading to the execution of Exh. “K’. So regardless of the evidence of long possession by the 1st respondent coupled with the fact that the appellant had obtained the sub-lease from Ukpanyang who in turn had entered the leasehold agreement with the 1st respondent’s predecessor, Asuquo Effiong, the 1st Respondent could not succeed in his claim against the appellant who had acquired a good title to the disputed land by virtue of the registered conveyance (Exh. ‘K’) which he obtained from the Effanga Offiong family and the latter’s title had been confirmed by the Supreme Court in Suit No. SC/278/71 affirming the Calabar High Court judgment in Suit No. C/31/1969. See AYODELE v. DR. O. OLUMIDE (1969) ALL NLR 225.

Exhibit ‘E’ written and signed by Etubom J. E. Henshaw on 25th January, 1988 purportedly vested the disputed land on Mrs. Ekanem Asuquo (wife of Corp. Asuquo Effiong, Deceased) around 1978 or thereabout. This was after the Supreme Court had delivered its judgment in Suit SC/278/71 on 6th November, 1973 but the evidence of DW2, Ignatius Effanga Archibong cleared the air when he stated that Effanga Offiong family is different from Henshaw Town Council. Under cross-examination this witness stated at page 68 lines 10 -12 thus:

“Henshaw Town Council has nothing to do with Abasi Obori land. The signatory to Exh. ‘E’ was not Etubom of Effanga Offiong. He was Etubom of Ekeng Ewatt House.”

The learned trial Judge did not make any adverse finding on the evidence of DW2 so it is presumed that he accepted his evidence. Earlier in the judgment the learned trial Judge had evaluated the evidence and made the following findings at page 240 lines 5- 12:-

“Since this judgment was a confirmation of an earlier judgment of the High Court in Suit No. C/31/69 I find and hold that title in all Efut Abasi Obori lands was in the Effanga Offiong family from the date of that High Court judgment. The Effanga Offiong family was therefore in order when it put out notices inviting all occupiers of Abasi Obori lands to come forward and pay obeisance to Effanga Offiong family. In obedience to the notice, Madam Affiong Ekpenyong, who was put on this plaintiff’s land by 2nd defendant vide Exh. ‘F’ as a yearly tenant went to Effanga Offiong family.”

What happened after this all important finding is inexplicable because the learned trial Judge made a volte face and went on to state that 1st defendant ought to have notified the 2nd defendant to go to Effanga Offiong family and not for him to present himself to Effanga Offiong family as the owner of the land to be dealt with as such. This is where the learned trial Judge went off course because having a building on the land is not the same as claiming ownership of the land. The appellant recognised that ownership of the land resided in the Effanga Offiong family and he wanted to protect his interest in the development he had carried out on the land, hence the leasehold agreement was entered into between Etubom Joseph Ewa Henshaw of Etinyin Effanga Offiong House and Madam Affiong Akom, the appellant’s predecessor for 30 years (Exhibit ‘K’). between Etubom Joseph Ewa Henshaw of Etinyin Effanga Offiong House and Madam Affiong Akom, the appellant’s predecessor for 30 years (Exhibit ‘K’).

I find that the appeal has merit and it is hereby allowed. I hereby set aside the judgment of the Cross River State High Court, Calabar in Suit No. C/216/89 delivered on 30/1/2006 and restore the lease agreement made on 15th January, 1978 between Etubom Joseph Ewa Henshaw on behalf of Etinyin Effanga Offiong House and Madam Affiong Akom. I make an order dismissing the Plaintiffs claim.

I award costs of N20,000.00 in favour of the Appellant against the 1st Respondent.

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Other Citations: (2009)LCN/3481(CA)