Chief Bruno Etim & Ors V. Chief Okon Udo Ekpe & Anor (1983)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, J.S.C. 

On 4th January 1983 we dismissed, with N300.00 costs to the respondents, the appeal to this Court filed by the plaintiffs/appellants – the people of Ifiayong, Uyo – against the judgment of the Federal Court of Appeal which affirmed the judgment of the High Court of the Uyo Judicial Division of the Cross River State – a High Court judgment which dismissed their claim for:

i. a declaration of title of ownership to a parcel of land bearing two names:

Akpatre Ntem Usung and Eyie Ayaiya, situate at Ifiayong, Uyo;

ii. N300.00 damages for trespass; and

iii. a perpetual injunction restraining the defendants/respondents from further trespass on the land

and fixed today, the 4th day of March 1983, as the date for giving the reasons for the dismissal. I now hereby, give the said reasons.

Appellants filed their Brief dated 10th August 1982 but the respondents filed no Brief by reason, apparently, of the late receipt, by respondents’ counsel, Chief E.E. Anwan, of the appellants’ Brief. Chief Anwan would have been entitled to an adjournment in order to file the respondents’ Brief but he was prepared to go on with the appeal should this Court decide to permit him, under Order 9 rule 6(5) of the Supreme Court Rules, to argue the appeal without his filing a Brief. As the matter for determination was a very narrow and simple one and as the parties came all the way from Cross River State and the respondents were ready to go on with the appeal without filing a Brief, this Court did not consider that in the interest of justice the parties should be put to the further burden and inconvenience of an adjournment and, therefore, decided that argument on the appeal should proceed.

As it turned out, at the close of the argument for the appellants, the Court, being of the view that the points raised by the appellants in support of the appeal did not deserve a reply from the respondents, did not call upon Chief Anwan to reply.

For a proper understanding of the issues in the appeal it will, perhaps, be of some assistance to trace the facts of the case, in a synopsis, from the High Court to the Court of Appeal before the case got to this Court.

As I had stated, it was a land dispute over a piece of land situate at Ifiayong, Uyo. The contestants were the people of Ifiayong, Uyo (as plaintiffs) and the people of Udi (as defendants), also in Uyo. The contest between the two villages had been long drawn out dating as far back as 1933. The pleadings show this clearly:

“STATEMENT OF CLAIM

1. The real plaintiffs are the people of Ifiayong. The plaintiffs on record have the authority of the people of Ifiayong to bring this action on their behalf.
2. The defendants on record are sued for themselves and as representatives of Idu people.
3. The areas the subject matter of this claim are called Ada Ita, Ebebit, Obot Idim Ibet. These are portions of Ifiayong land property of the plaintiffs. These areas are shown on the plan No. EPS/97/Ld dated 12th March 1969 prepared by Mr. Okon E. Eyo, Licensed Surveyor and Architect, Calabar.
4. The whole of Ifiayong land is the property of the plaintiffs, who have been in possession of it since the time of its founder, Etuong Akpan Ayan in 1155.
5. The 3 parcels of land are farm lands of the plaintiffs.
6. The plaintiffs have boundary with the defendants. One of the significant marks on the boundary is Akpatre Ntem Usung, and (sic) ancient boundary between them, which has been respected by both villages until recently. Another significant boundary mark is the Eyie Ayaiya Stream.
7. On or about the month of January 1969 the defendants without leave or licence of the plaintiffs broke and entered the areas of land aforesaid and cultivated portions thereof, harvested palm fruits therefrom and planted new ones thereon.
8. The defendants have threatened to continue the acts of trespass.
9. The plaintiffs therefore claim:-

i. 300 pounds damages for trespass;

ii. Perpetual injunction to restrain the defendants by themselves, agents, workmen from further acts of trespass on the said 3 acres of land.

Dated at Calabar the 11th July

Sgd. A. Okon

Plaintiffs Solicitor

50 Egnerton St Calabar.”

“STATEMENT OF DEFENCE

1. The defendants on record are not in a position to admit or deny para. 1 of the Statement of Claim. It is however not denied that the Plaintiffs on record are members of Ifiayong village (claimed in its entirely (sic) to be the real plaintiffs in the above Suit) but it is stated that they are neither Heads of any of the Families constituting the said Ifiayong village community nor are they elders or Responsible Members therein, and so strict proof will be required of the averments in Para. 1 of the Statement of Claim.
2. The Defendants on record admit they are Elders and Responsible Members in Idu Village in Uyo; but state that the said Idu Village comprises Six Families, each with its own Head; and that they are not Heads of any of the said Six Families; and that for the purpose of the above suit it is rather the Plaintiffs who have accredited them as representatives of the Idu Community.

3 (a) The People of Idu Village in Uyo, claimed to be the real defendants in the above suit, are a distinct group/entity in Uruan Clan in Uyo Province.

They now settle on a piece or parcel of land known as Idu Land on which their ancestors were the first settlers from time immemorial and over which they have since exercised maximum acts of ownership (e.g. farming, harvesting palm fruits, building and letting out plots of the same to strangers at a rent, amongst many others) according to native law and custom, and have their juju shrines on the same as exclusive owners in possession of the same without any let or hindrance and/or interference whatsoever from anyone else, including the Plaintiffs until only in recent years.

b. The Portion of the said Idu Land in issue in the present suit is as set out described and/or properly delineated in a Plan No. ISH. 751 by Mr. E. Ekpenyong, F.N.I.S., Licensed Surveyor of No.59 Mayne Avenue, Calabar, and dated 22nd November 1969, its northern boundary with its neighbouring LAND OF Mbiakong being therein verged green – it will be referred to hereinafter as the Locus in quo in the above suit or simply (sic). A certified true copy of the said PLAN is herewith filed with this Statement of Defence and marked “A”

a. In the High Court of the Calabar Area (as it then was known and designated) Suit No.10/1933 entitled

Abasi Okon Abasi Esien and others

v.

Ekarika Ekpo Esien

The on (sic) Claim – The first two plaintiffs as titular landlords and the second two as occupiers in possession or ownership of Eauk Iket Etuong or Ifiayong Beach

2. 100 pounds damages for trespass
3. Injunction

The Land in dispute therein a portion of Idu Land aforesaid, was exemplified in a plan (the said Plan is being herein inscribed/incorporated in “A” and verged pink therein). The judgments in the said suit (more particularly the one on appeal to the West African Court of Appeal, as it then was, Suit No.744 therein) and the copy of the plan used therein will be founded upon at the trial.

b. In further acts of ownership of the LOCUS IN QUO in the above suit the Defendants plead and will rely on, particularly the proceedings and/or judgments in the following suits, amongst others, relating to it or several of its pieces/parts, to wit:-

1. PROTECTORATE OF NIGERIA

In the High Court of the Calabar – Aba Judicial Division Holden at Uyo

SUIT NO. C/21/38 (C/21/43)

EKARIKA EKPO

v.

MKPA AKPAN ETUK UDO

C/22/38 (C/22/43) MKPA AKPAN ETUK UDO

v.

EKARIKA EKPO

C/23/38 (C/23/43) ABASI OKON ABASI AND OTHERS

v.

EKARIKA EKPO

(CONSOLIDATED SUITS)

ii In the Native Court of Idu

(Civil Jurisdiction) Case No. 105/56

1. Okon Inyang for himself and on behalf of Idu people
2. Chief Akpan Okon Akpa for himself and on behalf of Mbiakong People versus

Chief Noah Udo of Etoi now at Ifiayong

Particulars of Claim:- Deft. make himself an Obong Ikpa Isong Isong for Ifiayong

and Nwaniba without consultation and consent of land owners Idu and Mbiakong since January 1956.

iii. In the Native Court of Idu (Civil Jurisdiction)

Case No.C/23/55/56

Okon Udo Ekpe of Idu for Chief Okon Inyang versus

1. Asuquo Ime of Idu
2. Edem Ime of Idu
3. Asuquo Inyang of Ifiayong – Itiam

Claim: Deft. to vacate Idu Village and land situate at Ifiayong which deft, without any authority (sic)

Claim: Deft. to root out the crops he planted on the plaintiff’s land 2 weeks ago.

vii. In the Idu Native Court of Uruan

(Civil Jurisdiction) Case No. 17/37

Chief Ekarika Ekpo of Idu versus

Asibong Ekpenyong on behalf of E.C.M. Etuong Beach.

Claim: 10pounds Damages for cultivating the plaintiff’s land at Etuong Beach without consent of the plaintiffs. The right owner of the land since a week ago.

(c) and the following important land-lease, amongst many others:-

1. Indenture of lease

Between:

Ekarika Ekpo, Edet Nwa Adiaha, Esin Enyin Ukut, Udo

Ibanga, Mark Oko Essien

&

Udo Ndom for and on behalf of the people of Ikot Usurua, Ikot Enam, Ikot Equk, Nking, Ikot Antia Idem and Ikot Ekang

And

Messrs Deweha Limited

Land at Market Square of Ifiayong & Nwaniba in the Uyo

Division Calabar Province.

Dated: 17th June 1938

Registered: 6/6/510

Identure of lease

Between:

Ekarika Ekpo, Edet Nwa Adiaha, Esin Enyi Ukot, Udo Ibanga Mark Udo Essien, Udo Ekong Etok

And

Messrs. Deweha Limited

Land at Market Square of Ifiayong & Nwaniba in the Uyo Division Calabar Province.

Dated: 23/3/1939

Registered: 31/31/510

Indenture of lease

Between:

Ekarika Ekpo, Ekpo Udofia, Nyon Okon’ Etim Inyang, Uyo Etong Etok and Udo lbanga

And

Nigerian Properties Company Limited had handed over to one Asuquo Inyang since 1953

b. The deft jointly to remove the stone fixed in the suit land about two years ago.

iv. In the Native Court of Idu

(Civil Jurisdiction) Case No. 1198/29

Ekarika Ekpo of Idu

versus

Ekpenyong Efiom of Ifiayong Beach

Claim:’97 ‘a325 damages for building a house on plaintiff’91s land Ifiayong Beach without notice 6 months ago

v. In the Native Court of Idu

(Civil Jurisdiction) Case No. 174/31

Ibo Akpan of Ifiayong

versus

Bassey Mkpa Esien of Idu

Claim:- Deft. to root cut the crops he planted on the plaintiff’s land 2 weeks ago

vi. In the Idu Native Court of Uruan

(Civil Jurisdiction) Case No. 17/37

Chief Ekarika Ekpo of Idu

versus

Asibong Ekpenyong on behalf of

R.C.M Etuong Beach.

Claim:- 10 pounds Damages for cultivating the

plaintiff’s land at Etuong Beach without

consent of the plaintiff.

The right owner of the land since a week.

vii. In the Native Court of Uruan

(Civil Jurisdiction)

Chief Ekarika Ekpo of Idu

versus

Archibong Ekpenyong of Ifiayong Beach Case No. 18/37

Claim:- Deft. to remove R.C.M. Church erected on the plaintiff’s land at Etuong Beach without obtaining leave from the plaintiff the right owner of the land since a week ago.

c. and the following important land leases, amongst many others:

1. Indenture of lease

Between: Ekarika Ekpo, Edet Nwa Adiaha, Esin Enyin Ukut, Udo Ibanga, Mark Oko Essien & Udo Ndon for and on behalf of the people of Ikot Usurua, Ikot Ebam, Ikot Equk, Nting, Ikot Antia Idem and Ikot Ekang

and

Messrs Deweha Limited Land at Market Square of Ifiayong & Nwaniba in the Uyo Division, Calabar Province.

Dated 17th June (sic) 1938

Registered: 1/6/510

ii. Indenture of lease

Between:

Ekarika Ekpe, Edet Nwa Adiaha, Esin Eyin Ukut, Udo Ibanga Mark Udo Essien, Udo Ekong Etok

and

Messrs Deweha Limited Land at Market Square of Ifiayong & Nwaniba in the Uyo Division, Calabar Province.

Dated: 23/3/1939

Registered 31/31/510

iii. Indenture of lease

Between:

Ekarika Ekpo, Ekpo Udofia, Nyan Okon Etim Inyang, Udo Etok and Udo Ibanga

and

Enigerian (sic) Properties Companies Ltd

Land at Ifiayong

Dated: 8th Oct. 1939

Registered :43/43/510

iv. Indenture of lease

Between:

Ekarika Ekpo, Etim Inyang, Udo Ibanga Udi Ekong Etok, Nyon Okon and Akpan Efiong

And

His Excellency Sir Bernard Henry Bourdillon

G.C.M.G. & K.B.E.

Land at Ifiayong in the Uyo Division of Calabar Province.

Dated 26th January, 1940

Registered: 5/5/522

5. The different areas of alleged trespass as sited in Plaintiffs’ plan are all located within the locus in quo, and to that extent all operations therein by the defendants, as referred to in Para. 6 of the Statement of Claim, if at all, are in exercise of their (the Defendants’) right of exclusive use as owners of their (the Defendants’) land of which they have been in possession at all material times.
6. In the Particulars of Claim on the writ of summons declaration of title in (sic) sought and trespass alleged in respect to that piece of parcel of land known as and called Akpatre Ntem Usung and/or together with Eyie Ayaiya”

Whereas in Para. 3 of the Statement of Claim

The areas the subject matter of this claim are called Adu Ita, Ebebit, Obot Idim Ibet”

and “Akpatre Ntem Usung” and “Eyie Ayaiya Stream” are referred to in Para.6 of the Statement of Claim as merely significant marks on the boundaries.

At the trial it will be contended that it is not shown and/or described on the Plaintiffs’ Plan any piece or parcel of land bearing the identity (and/or at all) of “Akpatre Ntem Usung” and/or together with “Etie Ayaiya” as contained in the particulars of claim on the writ of summons, and also that in the present suit there are no claims and/or any relief sought in respect of Ada Ita, Ebebit and/or Obot Idim Ibet on the writ of summons.

7. At the trial the Defendants will avail themselves of all the legal and equitable defence (sic) open to them, more especially the following:-

a. estoppel

b. res judicata

c. long possession

d. ownership.

8. Other than as admitted herein above, directly and/or by necessary implication, the Defendants deny all the other allegations contained in the Statement of Claim as if they were set out seriatim and in like manner traversed, and strict proof of the same will be required from the Plaintiffs to the extent of their materiality to their case.

“Dated at Calabar 25th day of March, 1974.

Sgd: Chief E.E.E. Anwan

Counsel for the Defendants

PARTIES: ADDRESSES FOR SERVICE

PLAINTIFFS’ IFIAYONG VILLAGE, UYO

DEFENDANTS’ IDU VILLAGE, UYO

Filing 50K

Service 40K CR. NO. A957385

of 26-3-74.

Mlg. 75K

N1.65K”

The case was heard by Ita, J., at the Uyo High Court and in a detailed judgment in which he carefully dealt with all the issues raised in the pleadings and the evidence, he gave judgment for the defence not in respect of the entirety of the land claimed by the plaintiffs in exhibit 1, but in respect of the area verged red in exhibit 2 the northern portion of which is verged green. He came to that decision in these words:

“I hereby give judgment for the defendants not in respect of all the lands claimed by the plaintiffs in exhibit “1” but in so far as the area verged red in exhibit “2” is concerned; the northern part of which is verged green. Accordingly I dismiss the plaintiffs claim to the said area of land against the two defendants on record with costs.”

Before he came to the said decision, he weighed the evidence adduced by the parties and came to the conclusion, rightly in my view, that the defendants had put up “a strong case in their defence.” This was what he said:

“Here I have carefully weighed the evidence both for the plaintiffs and the defence of the two defendants and come to the conclusion in law that the two defendants have made out a strong case in their defence. I can find no element of weakness in the case for the defence upon which the plaintiffs rely.”

The defendants had successfully discredited the case put up by the plaintiffs.

Not satisfied with the judgment of the High Court the plaintiffs appealed to the Federal Court of Appeal which, on 8th September 1980, dismissed the appeal.

There were therefore concurrent findings against the plaintiffs and that should put to rest the facts in contention as respects this Court (Lamai v. Chief Orbih (1980) 5-7 S.C. 28; Mogo Chikwendu v. Mbamali (1980) 3-4 S.C.31). The Court of Appeal had drawn attention to the fact, following the judgment of the High Court, that even if the exhibits (namely the previous judgments and leases) which the plaintiffs/appellants were attacking were excluded (I shall come later to these exhibits) the judgment of the High Court would none-the-less be the same, as the appellants had failed to adduce sufficient evidence to warrant a declaration of title in their favour. This is what the Court of Appeal (Aseme, J.CA) said:

“I wish to observe however that even if the exhibits which the appellants now attack in this appeal are excluded, the judgment of the court below dismissing plaintiffs claims would have been the same as the learned trial judge rightly found in the court below that at the close of the case for the plaintiffs, the appellants had failed to establish either by credible evidence of tradition or acts of possession that they were entitled to judgment of the court. So that in any event on the evidence adduced by the appellants their case inevitably was bound to be dismissed.”

Chief Gani Fawehinmi, counsel for the appellants, has taken up the legal point before us, as he did before the Court of Appeal, that the documentary exhibits 3 to 10 (which were proceedings in previous suits and lease grants) concerning the land in dispute were wrongly admitted in evidence by the trial judge. But only exhibits 3 and 5 of those exhibits were objected to at the trial. Exhibits 4, 6 to 10 were admitted without objection. Exhibit 3 was a certified true copy of the judgment in the 1933 proceedings (Suit No. 10/33) between the people of Ifiayong represented by Abasi Okon Abasi Essien and three others and the people of Idu represented by Ekarika Ekpo Essien. The appeal was before the West African Court of Appeal the coram of which was constituted by Sir Donald Kingdom, C.J. Nigeria, Arthur Frederick Clarence Webber, C.J. Sierra Leone and William Butler Lloyd, Puisue Judge, Nigeria. It was sent back for trial de novo, the trial judge having dismissed the case of the Ifiayong people, who were the plaintiffs, without calling on them to reply to the submissions of counsel for the people of Idu (the defendants) and without calling on the people of Idu for their defence. That case, as Chief Anwan had said before the Court of Appeal, could not have constituted res judicata in favour of the respondents in this appeal, but could only go to show that they had been defending their interest in the land in dispute an act of possession dating back to 1933. Since it concerned the land in dispute; was between the same parties, and had otherwise satisfied all the rules of evidence for its admission, I do not see how the trial judge could have refused to admit it.

Again, exhibit 5 which was objected to, was a certified true copy of the 1956 proceedings of the Idu Native Court Suit No. 105/56 in which Chief Okon Inyang representing the people of Idu and Chief Akpan Okon Akpan representing Mbiakong people sued Chief Noah Udo of Etoi said to be then at Ifiayong claiming as follows:

“Defendant. makes himself an Obong Ikpa Isong for Ifiayong and Nwaniba without consultation and consent of the land owners of Idu and Mbiakong since January 1956.”

The claim which in its form, on the face of it, appeared meaningless would be seen, from the evidence adduced, in accordance with the accepted mode of interpreting native court cases of looking not at the form but to the substance (see: Kwamin Boadu v. Kobina Fosu and Another 8 W.A.C.A. 187; Madukolu v. Nkemdilim (1962) 1 All N.L.A. 587 at 593), as concerning the land in dispute and again as constituting for the Idu people (the present respondents) an act of possession.

No justifiable ground, in my view, was adduced for rejecting the admissibility of the documents. That was for exhibits 3 and 5 which were objected to. They were clearly admissible and were rightly admitted by the trial judge.

Turning now to the exhibits (4, 6 to 10) which were not objected to – all of them, previous proceedings and leases – it is somewhat perplexing to see how counsel could turn round on appeal (before the Court of Appeal) to complain about the admissibility of a document to which he did not object when it was tendered in the court below in the course of trial.

It is a cardinal rule of evidence, and of practice, in civil as well as in criminal cases, that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding) for failing to satisfy some conditions or to meet some criteria, the rule still remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document (or other evidence see: Chukwura Akunne v. Mathias Ekwuno (1952) 14 W.A.C.A. 59), the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission (see: Alade v. Olukade (1976)2 S.C. 183 at 188-9; for criminal trials – see: R. v. Hammond (1941) 3 All E.R. 318; R. v. Patel (1951) 2 All E.R. 29).

Such exceptions would, among others, include an

i. unregistered instrument required by law to be registered (see: Abdallah Jamal v. Namih Saidi and Another (1933) 11 N.L.R. 86; Elkali and Another v. Fawaz (1940) 6 W.A.C.A. 212; Idowu Alase and Others v. Ilu and Others (1965) N.M.L.R. 66);

ii. unsigned deed of grant (or copy or copy of copy thereof) (Abdul Hamid Ojo v. Private Adejobi and Others (1978) 3 S.C. 65;

iii. unstamped instrument or document requiring to be stamped, unless it may legally be stamped after execution and the duty and penalties are paid (see: Routledge v. Mckay (1954) 1 All E.R. 855 at 856; 1 W.L.R. 615 at 617).

The contention as to the admissibility of those exhibits to which objection was not raised is clearly misconceived and entirely without substance.

Chief Fawehinmi, arguing in the alternative, has however contended, relying on Enang and Another v. Okono and Others: Enang and Another v. Ekanem and Others (1962) 1 All N.L.R. 530, that assuming that the exhibits were rightly admitted in evidence, the learned trial judge made improper use of them by not restricting himself to the claims and judgments in the cases but treated the evidence in the cases as if they were evidence before him. In his brief before us at page 3 he argued that:

”The appellants’ contention is as follows:-

1. That the trial judge was wrong in law in accepting the entire proceedings in exhibits 3-10.
2. That consequent upon this error, the Federal Court of Appeal could not be in a position to speculate on what decision the lower court would have given (sic) proceedings in exhibits 3- 10 had not been used in the manner revealed in the judgment now on appeal.”

This contention, as the Court of Appeal rightly pointed out, has not been borne out from the record of appeal which shows that the learned trial judge made use in his judgment, not of the evidence of the witnesses as was wrongly done in Alade v. Aborishade (1960) 5 F.S.C. 167, but of the facts contained in the judgments, including the judgment in exhibit 4.

After carefully going through the record of proceedings I am unable to see where the judgment of the learned trial judge, against the background of the evidence adduced at the trial, can be faulted. It was for these reasons that we dismissed the appeal as hereinbefore stated.

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SC.62/1982