Chief Ita Okon Aqua V. Chief David Ekanem (2008)

LawGlobal-Hub Lead Judgment Report

M. A. OWOADE, J.C.A.

This is an appeal against the judgment of Hon. Justice Philomena Ekpe delivered on 21st December, 2007 at the Akpabuyo Judicial Division of the High Court of Cross River State.

The Respondent as Plaintiff before the lower court issued a writ of summons accompanied by a Statement of claim against the Defendant/Appellant on 18/3/2005.

The claim of the Plaintiff/Respondent’ became crystallized in his Amended Statement of claim of 21st February 2006.

14. Whereof the Plaintiff. claims against the Defendant as follows:

(a) The sum of N10,000,000.00 (Ten Million Naira) in that the Defendant without any lawful excuse, reason license or authority entered the Plaintiff’s land situate and lying at Edik Idim Ikot Effanga in Akpabuyo Local Government Area.

(b) Perpetual injunction restraining the Defendant whether by himself, servants, workers, agents, or otherwise whosoever from further acts of trespass and on doing anything inconsistent with the Plaintiffs proprietary interest in respect of the piece or parcel of land situate at Edik Idim Ikot Effanga, Akpabuyo Local Government Area of Cross River State.

On 16th April, 2007, the Defendant/Appellant filed a further Amended Statement of defence and counter claim, wherein he also claimed damages for trespass and injunction against the Plaintiff/Respondent. The Plaintiff/Respondent filed a further Amended Reply to Statement of defence on 30/5/2007.

The Respondent’s case was that he leased the land in dispute from Etinyin Effanga Offiong House (or family) in 1976 and surveyed it in 1986. He appointed a caretaker and in 2005 when he sent to clear the land he found that the Appellant had planted oil palms on the land. When the Respondent asked the Appellant to remove the palms, he refused. The Respondent hired people to clear the land whereupon the Appellant got the Respondent arrested and as a result the Respondent filed this suit.

The Appellant’s case was that the Etinyin Effanga House has no right to lease the land in dispute to the Respondent because the land does not belong to that family.

The Appellant claims that the land in dispute belonged originally to Obutong community who gave it to his grand mother, from whom his father inherited the land and he inherited in turn from his father.

The Plaintiff/Respondent called six (6) witnesses while four (4) witnesses testified for the Defendant/Appellant. At the end of the trial, the learned trial Judge resolved the question, who has better title? in favour of the Plaintiff/Respondent and entered judgment in his favour.

Aggrieved by the decision, the Appellant file a Notice of Appeal with nine (9) grounds of appeal on 23/6/2008.

Appellant filed his brief of argument on 21/4/2008, and the Respondent filed his own brief on 3/6/2008. The Appellant filed a Reply brief on 12/6/2008. The Appellant formulated the following issues for determination.

1. Whether on the evidence adduced in this case the learned trial Judge was right to hold that Exhibit 1 conveyed a valid title to the land in dispute on the Respondent.
2. Whether the Respondent’s claims in this suit were statute barred.
3. Whether the Appellant had proved his counter-claim for damages for trespass and an order of injunction in this suit.

The Respondent on the other hand, formulated the following issues:

1. Whether in view of the evidence on record, the learned trial Judge was right to enter judgment in favour of the Respondent.
2. Whether the learned trial Judge was right when he held that time began to run in 2005 within the purview of the Cross River State statute of limitation law 2004.
3. Whether on the face of his contradictory evidence, the Appellant has proved his counter claim for damages for trespass and an order of injunction in this suit.

I have carefully gone through the record of appeal and the briefs of argument in this case and have come to the conclusion that the following issues in this order would be more appropriate for the determination of this appeal.

1. Whether the Respondent’s claims in this suit were statute barred.
2. Whether in view of the evidence, the learned trial Judge was right to enter judgment for the Respondent.
3. Whether the Appellant has proved his counter-claim for damages for trespass and an order of injunction.

In relation to Issue No. 1 as presently formulated, the Appellant submitted under his issue No. 2 that the time for limitation in this case started to run from when the Respondent (or Etinyin Effanga Offiong House through whom he claims his title) was dispossessed of the land in dispute. And that since paragraph 10 of the Amended Statement of Claim did not mention when the Appellant planted the palms, which he met, on the land in 2005, the pleadings and the evidence of the Appellant that he planted the palms between 1965 and 1975 stood uncontradicted and is deemed admitted.

Appellant’s Counsel submitted that by Section 1 of the Cross River State Limitation Law, an action to recover land must be brought within ten years from the date the cause of action first accrued to the Plaintiff, or to the person from whom the Plaintiff derives his title, and relying on the cases of Muemue vs. Gaji (2000) FWLR (Pt.16) 2764 and Ujih vs. Egorr (1990) 5 NWLR (Pt. 153) 661 he concluded that the suit by the Respondent is statute barred.

Learned Counsel for the Appellant then attacked the reasons given by the learned trial Judge for refusing to hold that the suit is statute barred. First, that time starts to run in 2005 when the Plaintiff sought to clear the land and secondly because the Defendant has no agric oil palm on the land. Appellant’s Counsel finally submitted on this score that the finding by the learned trial Judge flies in the face of the provision of Section 1 of the Cross River State Limitation Law and also relying on the case of Akibu vs. Azeez, 2003 FWLR (Pt. 149) 1490 said that time for limitation begins to run from when a right of action accrues and not from when a party became aware that he has a right of action.

In the main, the response from the Respondent to the above is that the learned trial Judge was right when he held that “I agree with the fact that time began to run in 2005 when the Plaintiff sought to clear the land. He therefore acted timeously.”

Relying on the cases of West African Principal Insurance Coy Ltd. vs. Nigerian Tobacco Co. Ltd. (1987) 2 NWLR (Pt. 500 299 at 356, and Nwansosike vs. Udosen (1993) 4 NWLR (Pt. 290) 684 he submitted that the learned trial Judge was right to look into its records in not accepting the contradictory evidence offered by the Defendant/Appellant that he planted oil palms on the land in dispute since 1965.

Respondent’s Counsel furthered that a cause of action consists of every fact, which will be necessary to prove if traversed in order to support a claim or judgment. And that the accrual of the cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. The Respondent, he said bought the land in issue in 1976 and surveyed it in 1986, he appointed Chief Effanga Essien Effanga – PW2 as the caretaker who in turn instructed others to parcel out the land to farmers, that this was done without interruption until 2005 when the Plaintiff/Respondent came to develop the land and found that the Defendant has planted oil palms.

Section 1 of the Limitation Law of Cross River State (Cap. L 14 Laws of Cross River State) provides:

“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him, or if it first accrued to some other person through whom he claims, to that person”.

Section 2 (1) of the said Limitation Law stipulates when a right of action is deemed to have accrued thus:

“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

And in Section 7(1) the law provides that:

“No right of action to recover land shall be deemed to accrue unless the land is in possession of some person in whose favour the period of limitation can run ”

It is clear from the above provision that time begins to run in land cases when possession is lost save where there is fraudulent concealment. Ajilona vs. Kolawole (1996) 10 NWLR (Pt. 476) 22, Kasandulu VS. Ultimate Petroleum Ltd. (2008) 7 NWLR (Pt. 1480) 274 at 302.

The Respondent in this case claimed by paragraph 10 of the Amended Statement of Claim filed, that he became dispossessed of the land in dispute in 2005 and the writ of summons was issued on 18/3/2005. Meanwhile, the Appellant relied on paragraphs 13 and 18 of his further Amended Statement of defence and his evidence that he had planted oil palms on the land since 1965.

It seems to me logically impossible for the Appellant to have dispossessed the Respondent in 1975 of a piece of land which the Respondent purchased in 1976 and surveyed in 1986.

In the instance case, the issue of Limitation of action was rightly decided at the end of the trial and there been no admission by the Respondent of the Appellant’s claim as to limitation, the learned trial Judge was right to have based his finding on limitation on his findings of facts as regards who in between the Plaintiff and the Defendant had better title.

Consequently, the learned trial Judge’s finding in the instant case that “I agree with the fact that time began to run in 2005 when the Plaintiff sought to clear the land.

He therefore acted timeously” cannot be faulted.

In this respect, I must quickly point out that the decision of the Supreme Court in the case of Alhaji Akibu & 3 Ors vs. Azeez & Anor (2003) 5 NWLR (pt. 814) 643 at 670 cited by the Appellants Counsel is not applicable to the facts and circumstances of the instant case. In that case, the Supreme Court held (per Ogundare JSC of blessed memory) at page 411 that:

“While knowledge of the true owner of land of the adverse possession of another is essential to the success of the equitable defences of laches and acquiescence, this is not material under limitation law …. ”

In other words, a party who pleaded the defence that an action is statute-barred need not satisfy the court that the Plaintiff had knowledge of the trespass or adverse possession. The implication of the decision of the Supreme Court in Akibu vs. Azeez case (supra) is that whether is raised in limine that is under a procedure in lieu of demurrer or decided at the close of trial as in the instant case, the court is at liberty to calculate the period of limitation in arithmetical terms or determine the same from the evidence and pleadings; without any burden on the Defendant to show knowledge of the Plaintiff in relation to his (Defendant’s) adverse possession.The decision of the Supreme Court in Akibu vs. Azeez (supra) is not contrary to its earlier decision in Jallco Ltd. vs. Owoniboys Tech Services Ltd. (1995) 4 NWLR (pt.391) 634 at 547 as the learned Counsel for the Appellant would want us to believe. In Jallco Ltd. vs. Owoniboys (supra) at page 547 Hon. Justice Uthman Mohammed speaking for the Supreme Court asked the question “when does time begin to run? And answered the question thus:

“This court in the case of Fadare & Ors vs. Attorney-General of Oyo State (1982) NSCC 52 at 60 referred to the case of Board of Trade vs. Cagnes Irvine & Co. Ltd (1927) A.C.610 where it was held “Time therefore, begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are material to be proved to entitle the Plaintiff to succeed. It is crystal clear from the facts of this case that the Respondent had not become aware of the wrong entries on his accounts until in 1980/81. That being the case the right of action accrued when the Respondents’ demand to have his account credited was denied and refused, and this happened in 1980/81. The claim of the Respondent is not therefore statute barred.” Similarly, in the instant case, the learned trial Judge was not wrong to have held that the Respondent’s case is not statute barred as his right to action accrued in 2005 when he (Plaintiff/Respondent) sought to clear the land. Issue 1 is resolved against the Appellant.

The second issue in this appeal is whether in view of the evidence on record, the learned trial Judge was right to enter judgment in favour of the Respondent. The issue, forms the content of Appellant’s Issue No. 1 where the learned Counsel for the Appellant contend amongst other things that Exhibit 1 could not have conveyed a valid title on the Respondent. Appellant’s Counsel submitted that where a Plaintiff relies on a document as his root of title, the court must scrutinize the document to determine (i) whether the document is genuine and valid (ii) whether it is duly executed, stamped and registered. (ii) whether the grantor had the authority to make the grant. (iv) whether the grantor in fact had the land he purportedly granted, and (v) whether the instrument had the effect claimed by the Plaintiff.

Appellant’s Counsel relied on the cases of Dabo vs. Abdullahi (2005) All FWLR (Pt. 255) 1039, and Tumo vs. Murana (2001) FWLR (Pt 33) 369.

Based on the above, Appellant’s Counsel submitted first, that Exhibit 1 that is the Deed of Lease between the Respondent and his vendors is a fraudulent document. This is because, the Respondent could not explain the difference between the signatures of Etubom Andrew Effanga Archibong in between Exhibit 1 which was produced and tendered by the Respondent and Exhibit 4 a photocopy of the same document as produced by the Respondent at the Police Station which was produced by the Appellant and tendered through the Respondent. Relying on the case of Nwaoba vs. Ihebie (1990) 2 NWLR (Pt. 134) 589, Counsel submitted that where a document has obviously been altered or tampered with, as in this case, a court must not rely upon such a document.

Secondly, Exhibit 1, said Appellant’s Counsel was purportedly signed in 1976 by one Andrew Effanga Archibong who described himself as an Etubom and Head of Etinyin Effanga Offiong House. But his son who testified as PW 4. testified that his father became the Etubom in 1989 after the death of Etubom Ita. and therefore Andrew Effanga Offiong was an impostor in December 1976 when he purportedly signed Exhibit 1 and the document was to that extent fraudulent.

Also, said Appellant’s Counsel one of the witnesses in Exhibit 1 is alleged to be the Appellant who has, of course, denied signing the document. That when a signature is disputed, Section 108 (1) of the Evidence Act provides that some admitted specimen of the signature of that person should be used for comparison with the disputed signature. But that in this case, the Respondent adopted the dubious procedure of submitting for a handwriting analysis the Appellant’s disputed signature on Exhibit 1 for comparison with other signatures on Exhibit 5 and 6 which the Appellant had also denied signing. The result of that hand writing analysis which was that the same person signed the disputed signature on Exhibit 1 and the specimen signatures on Exhibit 5 and 6, according to Appellant’s Counsel was therefore of no moment since the Appellant had not admitted signing any of those signatures.

Appellant’s Counsel furthered that the learned trial Judge should have compared for herself the Appellant’s disputed signature on Exhibit 1 with his undisputed signatures on Exhibits 13, 14 and 16 and on the various affidavit signed by him in this case, which were in the court file. Had the learned trial Judge done this, as urged by the Appellant in line with Section 108 of the Evidence Act, the trial court would have found for a fact that Appellant’s purported signature on Exhibit 1 is not that of the Appellant.

Relying on the cases of Adimora vs. Ajufo (1988) 3 NWLR (Pt. 80) 1 and Ndoma-Egba vs. ACB (2005) ALL FWLR (Pt. 283) 152. Appellant’s Counsel said that for the reason he had given, Exhibit 1 is not a genuine document and the learned trial Judge erred in relying on it.

The second limb of Issue No. 2 from the perspective of the Appellant is that contrary to the finding of the learned trial Judge, Exhibit 1 was not duly signed, sealed and registered. What is apparent in the face of the document according to Appellant’s Counsel is that the Respondent paid the assessed stamp duties for the document but that does not amount to a registration of the deed as required by Sections 6 and 7 of the Cross River State Instrument Registration Law. He continued, where it had been wrongly admitted as in this case, the law is that the document must be discountenanced for lacking probative value and expunged from the records.

Akinduro v. Olaiya (2007) ALL FWLR (Pt. 381) 1653.

Learned Counsel for the Appellant conceded that an unregistered land instrument, such as Exhibit 1, may be admitted to prove the payment or receipt of money. And that in effect, Exhibit 1 was tendered to prove the payment of N10,000.00 as land rent for the land in dispute by the Respondent. Counsel noted that there is however, nothing in Exhibit 1 to show the payment of that amount of money. He submitted that to that extent, Exhibit 1 does not support the fact of which it was intended to prove. In the circumstances, it was an error to treat Exhibit 1 with any probative value and as proof of the Respondent’s title to the land in dispute.

The third limb of Issue No. 2 according to the Appellant’s Counsel is that the lessor in Exhibit 1 had no power to grant the lease. First, because, Etubom Offiong Ita and not Andrew Effanga Archibong was proved to be the Head of Etinyin Effanga Offiong House in 1976 when Exhibit 1 was executed and also because there was no indication that Etubom Offiong Ita consent as Family Head was sought and obtained for the agreement – Exhibit 1. On this, learned Counsel for the Appellant relied on the cases of Babayeju vs. Ashamu (1998) 7 SCNJ 158 and Odekilekun vs. Hassan (1997) 12 SCNJ 114 at 126 that the family cannot give any title in a conveyance of the family (land), without the Head of the Family joining in the conveyance even if he may be in agreement. And as, Etubom Offiong Ita did not join in the execution of the Respondent’s deed of lease Exhibit 1, the learned trial Judge erred when she held that Exhibit 1 conveyed a valid title to the land in dispute on the Respondent.

The fourth limb of the Appellant’s argument on Exhibit 1 is the argument that Exhibit 8 – minutes of the special meeting of Etinyin Effanga Offiong family dated 31st January, 1987 produced by the Plaintiff and tendered through P.WA resolved amongst other things that Edik Idim Ikot Effanga is the property of Offiong Effanga as a gift from his mother and not that of Effanga Offiong. According to the learned Counsel for the Appellant, the Exhibit created an admission against interest by the Respondent’s vendor which admission is also binding on the Respondent by virtue of Section 20(3) of the Evidence Act. Relying on Owie vs. Oghiwi (2005) ALL FWLR (Pt.248) 1762 Awonusi vs. Awonusi 2007 ALL FWLR (Pt. 391) 1642 and Usiobaifo vs. Usiobaifo 2001 FWLR (Pt. 61) 1784. Appellant’s Counsel submitted that Exhibit 1 did not therefore have the effect claimed by the Respondent on it as root of title. And finally on Issue No.2 that the finding by the learned trial Judge that Exhibit 1 conveyed a valid title to the land in dispute on the Respondent was clearly perverse in view of the patent legal defects on the documents.

Learned Counsel for the Respondents on the other hand submitted that Exhibit 1 is a Deed of lease which was drawn and signed by the principal members and the Head of Effanga Offiong Family who are the owners of the land in dispute. That the Appellant signed as a witness to the Respondent while one Inyang Ekpenyong Essien (Village Head) signed as a witness to Effanga Offiong family. The Respondent, said counsel tendered survey plan showing the land in dispute as Exhibit 2. He also tendered Exhibit 3 which is a receipt dated 10th February, 1987 to show that he paid the sum of N300,000.00 (Three Hundred Thousand Naira) to the Effanga Offiong family to cover the term of 99 years.

Respondent’s Counsel further submitted that this evidence was substantiated by Chief Effanga Essien Effanga – PW2, Edet Bassey Offiong PW3 and Etubom Ignatius Archibong – PW4 who is also the Secretary of Effanga Offiong family and the current Village Head of Edim Idim Ikot Effanga, the later PW 4 also identified the Appellant’s signature on Exhibit 1 as a witness to the Respondent.

On the allegation of forgery of the signature, Respondent’s Counsel said that the Respondent testified as PW1 and tendered Exhibit 1 while Etubom Ignatius Archibong who testified as PW4 confirmed that the signature in Exhibit 1 was that of his father. He submitted that it is the Appellant who brought in Exhibit 4 and that it had been in his custody. If there is a difference between Exhibit 1 and 4, it is only the Appellant that can explain the disparity because Exhibit 4, tendered at cross examination was in the Appellant’s custody. Learned Counsel for the Respondent furthered that Exhibit 1 has not been altered or tampered with or forged in any manner, no member of Effanga Offiong family has complained about any of the signatures in Exhibit 1 therefore, the decision in the case of Nwaobia vs. Ihebie (supra) cited by the Appellant is not relevant to this case.

On the question of whether Exhibit 1 was signed by the Head of Effanga Offiong Family, Respondent’s Counsel submitted that no member of Effanga Offiong family has ever complained that Etubom A. E. Archibong who signed Exhibit 1 as Family Head was not competent to do so.

Respondent’s Counsel submitted that as Appellant is not tracing his root of title to Effanga Offiong family or any of the sub-families, the question of who signed as family Head remains an internal affair of the family. Relying on the case of Onigbede & Ors. Vs. Balogun & Anor (2003) 4 SCM 14 that in the circumstances of the case, it does not lie in the Appellant’s mouth to complain and that Appellant is a busy-body as held by the Supreme Court in the Onigbede & Ors vs. Balogun & Anor case (supra).

Moreover, said Respondent’s Counsel, PW2 even, stated in evidence that in 1976, Etubom Offiong Effanga Ita was the Henshaw Town Clan Head and not Family Head to Effanga Offiong.

On the denial by the Appellant of the witness’s signature on Exhibit 1, Respondent’s Counsel submitted that there was overwhelming evidence that the Appellant signed Exhibit 1 as a witness to the Respondent. First, the Respondent who testified as PW 1 said that the Appellant was then the Village Secretary and “I asked him to sign as my witness and he did” (page 125 line 12 of the record). PW 4 who also signed as one of the witnesses to Effanga Offiong family said he saw the Appellant signed as a witness to the Respondent. And also testified that as Secretary to Effanga Offiong’s family he had custody of all correspondences to the family and confirmed that it was the Appellant who wrote Exhibits 5 and 6.

Respondent’s Counsel furthered that the approach suggested by the Appellant’s Counsel in connection with the analysis and comparison of the Appellant’s signature is only one of the ways a signature or handwriting may be proved. And that the provision of Section 100 of the Evidence Act could also be satisfied:

(a) By calling the writer of the document, or

(b) By calling the witness who saw the document signed or

(c) By calling the witness who has acquired the knowledge of the writing or

(d) Comparing the document in dispute with any other document proved to the satisfaction of the Judge to be genuine or

(e) Calling expert or

(f) Admission of the party against whom the document is tendered.

On this learned Counsel to the Respondent referred to Sections 57 and 61 of the Evidence Act and to Law and Practice of Documentary Evidence by Ike D. Uzo.

Counsel continued, PW4 who saw the Appellant signed Exhibit 1 has acquired the knowledge of the Appellant’s signature by virtue of his being the Secretary of Effanga Offiong’s family and having received correspondences from the Appellant.

Exhibits 5, 6 and 7 are documents authored and signed by the Appellant and the original copies kept in the custody of PW4. PW4 was also present when the Appellants signed Exhibit 1. Therefore, no documents could be more authentic and genuine in this case than Exhibits 5, 6 and 7 for comparison with Exhibit 1.

Learned Counsel for the Respondent further submitted that PW5, the handwriting expert analyzed the signature on these documents and compared it with the signature on Exhibit 1 and found that the signatures belong to one and the same person that is the Appellant.

Also, that a closer look at the signature on Exhibit 19 (A civil summons issued by the Appellant in an unrelated suit) reveals that it is still the Appellant’s signature.

Thus, Exhibits 5, 6, 7 and 19 were all signed by the Appellant. The Appellant’s contention that the signature on Exhibit 19 belongs to his deceased son even when he (the Appellant) was the Plaintiff in Exhibit 19 is of no moment and cannot avail him.

Relying on the cases of A.G Bendel State vs. UBA (1986) 4 NWLR (Pt. 87) 547 and Dodo vs. Solanke (2007 All FWLR (Pt. 346) 576 at 596, Respondent’s Counsel submitted that a document tendered in court is at best proof of the content of that document and no oral evidence can contradict the content thereof.

On this score, Respondent’s Counsel concluded that the learned trial Judge was right when he relied on the opinion of PW5, the handwriting analyst as his conclusion was within the contemplation of the Evidence Act. On the allegation of fraud against Exhibit 1 Respondent’s Counsel submitted that the allegations of mutilation of signature in Exhibit 1 are purely criminal in nature and that was not proved at the trial beyond reasonable doubt. On this, Counsel referred to Section 138 of the Evidence Act, Adamu vs. A.G Bendel State (1986) 2 NWLR (Pt. 22) 284, Agi vs. L. E. Ejinkonye Bros Ltd. (1992) 3 NWLR (Pt. 228) 200.

On whether Exhibit 1 was duly stamped and registered, Counsel submitted that the Respondent came into possession in 1976 and that Exhibit 1 was tendered as a purchase receipt to show payment. That on 1/11/2004, paragraph 9 of the Respondent’s statement of claim was amended in accordance with the evidence adduced to show that the initial payment on Exhibit 1 was N3,000.00 and not N10,000.00. Counsel submitted that failure to register Exhibit 1 cannot defeat the equitable interest of the Respondent. And relying on the cases of Olanrewaju vs. Ogunleye (1977) 12 SC 40, and Dr. Okoye vs. Dumez (Nig.) Ltd. (1985) 6 SC (Pt. 3) at p.9 that, it is only a bonafide purchaser for value without notice that can defeat the interest of a purchaser who is in possession.

On the question whether the lessor in Exhibit 1 had the power to lease, Respondent’s Counsel submitted that Appellant did not lead any evidence to show that the Head of Effanga Offiong family did not give his consent to the transaction, which resulted in Exhibit 1. That in contrast, PW2 gave evidence that Etubom Offiong Ita was indeed the Henshaw Town Clan Head and not Family Head of Effanga Offiong in 1976. Etubom Offiong Effanga Ita did not have the capacity to endorse Exhibit 1 and he never complained until his death.

In any event, said Respondent’s Counsel, the Appellant did not trace his root of title to Effanga Offiong family or any of its sub-families, therefore the matter of who was Effanga Offiong Family Head remains an internal affair of Effanga Offiong family of which the Appellant is not a member. The Respondent repeated the same argument in relation to the minutes of the meeting of the Effanga Offiong family – Exhibit 8 and added that Effanga Offiong was the father of Offiong Effanga – Effanga Offiong family had been an indivisible family, it has its sub-families namely: Offiong Effanga and Effio Effanga, but all landed transactions are done in the name of their father Effanga Offiong.

And that PW4 was correct when he said:

“We signed an agreement that Effanga Offiong sold the land to the Respondent, the entire family agreed to it” (page 137).

Respondent’s Counsel submitted that Exhibit 8 does not amount to an admission that the land in issue does not belong to Effanga Offiong family but its essence was to streamline the internal machineries of Effanga Offiong family.

Learned Counsel for the Respondent also pointed out that the Appellant acknowledged the authority of Effanga Offiong family in connection with all lands in Edik Idim Ikot Effanga when he signed Exhibit 1 as a witness and not as a party. That the Appellant also wrote Exhibit 5 to the Family Head of Effanga Offiong family complaining that the family should cause the Respondent to pay him compensation of which PW4 testified that the family having received the letter found out that the issue of compensation never arose between the Appellant and the family and that Exhibit 5 has no merit.

Learned Counsel for the Respondent further demonstrated through Exhibits 5, 6 and 7 the recognition by the Appellant of the authority and supremacy of Effanga Offiong family as the owner of all lands in Edik Idim Ikot Effanga inclusive of the land in dispute.

Finally on Issue NO.2, learned Counsel for the Respondent reviewed the evidence led by the parties and submitted that throughout the trial, the Appellant never brought anybody from Obutong to establish his root of title and neither of his witnesses came near to establishing the Appellant’s root of title. In contrast, Edet Bassey Offiong who testified as PW3 said the Appellant and PW2 were present during the surveying of the land sold to the Respondent while he helped in fixing the Beacon stones. Further that the evidence of the Appellant as to when he claimed to have planted Agric oil palms on the land in dispute and that of his DW 2 who saw a few wild palms in 1975 were irreconcilable.

In deciding Issue NO.2, it is important to point out that much of the submissions and arguments by the learned Counsel for the Appellant were influenced by the assumption that the Respondent tendered Exhibit 1 as a document in proof of title to the land in dispute under the rule in Idundun vs. Okumagba (1976) 9 – 10 SC 27 followed in cases such as Morenikeji vs. Adegbosin (2003) FWLR (Pt. 163) 45 and Alli vs. Alesinloye (2000) FWLR (Pt 15) 2610. It would be recalled that in those cases, five ways of proving title to land were laid down, namely (i) by evidence of traditional history (ii) by documents of title (iii) by acts of ownership (iv) by acts of possession over a long time, and (v) by proof of ownership of adjoining lands.

In the instant case, the Respondent pleaded and tendered Exhibit 1 as a purchase receipt, consequent on which he was led into possession and thereby held on to an equitable interest in the land in dispute.

In the case of Godwin Nsiegbe & 1 Or vs. Obinna Mgbemena & Anor (2007) NWLR (Pt. 1042) 364 at 397 the Supreme Court (per Chukwuma-Eneh JSC) had this to say:

“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 money or rent: Savage vs. Sarrough (1973) 13 NLR 141, Ogunbambi vs. Abowab (1951) 13 WACA 222, Fakoya vs. Shagamu (1966) 1 ALL NLR 74, Oni vs. Arimonu (1973) 3 SC 163, Bucknor-Maclean vs. Inlaks (1980) 8 -11 SC 11 and Obijuru vs. Ozims SC 48/1984 delivered on 4th April, 1985 unreported, now reported in (185) 2 NWLR (Pt. 6) 167 per Bello, JSC as he then was, in Dr. J. C. Okoye vs. Dumex (Nig) Ltd. Anor 1985) 6. S.C. 3 at p. 12, (1985) 1 NWLR (Pt. 4) 783, since in the instant case, Exhibit B and J are as good as if they had been registered and by Exhibit J, Richard Ahumibe had acquired an equitable estates which is as a good as which is as good as a legal estate transferred to the Defendant as per Exhibit B, it follows that the Defendant had discharged the burden on him to show that the Appellant’s father had delivered himself of the ownership of the land in dispute and therefore the claim of the Appellants as his successor -in-title to the land in dispute is not maintainable”

It goes without saying that the burden of proof of title to the disputed land in this case by the Respondent is lessened or minimized by the conduct and representation of the Appellant to the Respondent throughout the period of the purchase of the land by the Respondent from the Effanga Offiong family.

1. One Chief Effanga Essien Ekpenyong introduced the Respondent to the Village Head of Edik Idim Ikot Effanga and also to the Appellant who was Secretary to the Village Council for the purpose of purchasing land in Edik Idim Ikot Effanga.
2. Gifts of drinks and money were given to the Village Council and in company of the Appellant the Respondent was shown the boundaries of the land in dispute.
3. The Appellant then introduced the Respondent to the Effanga Offiong family as the owners of the land in dispute, whereby the Effanga Offiong family fixed the price and he (the Respondent) paid the initial deposit of N3,000.00 to the family.
4. A purchase Agreement, Exhibit 1 was drawn up and signed by the Head and Principal members of the Effanga Offiong Family wherein, the Appellant signed as witness to the Respondent and the Respondent was led into possession.
5. Later, the Respondent went to survey the land in dispute in company of the Appellant who showed the boundaries of the land to the survey team and they were not challenged on the land.

The above facts were specifically pleaded in paragraphs 4, 5, 6 and 7 of the Respondent’s Amended Statement of claim. The conduct of the Appellant in the instant case is unconscionable, unjust and inequitable. Under the doctrine of estoppel the Appellant would not be allowed to resile from the admission and representation by conduct which he made to the Respondent that the Effanga Offiong family was truly the owner of the land in dispute, at least not in a contest between the Appellant and the Respondent as in the instant case.

Estoppel is a general characterization for many and varied situations where a person in litigation is prevented from resiling from or doing the contrary of that which he has led another to believe, as well as the special case of relying on a previous judgment as conclusion of the issue in dispute. In each case, the rule is called into play in the interest of public policy to prevent injustice and detriment to the other party who relied on the conduct of another. Lord Denning M. R. puts it as follows in the case of Morgatae Merchantile Co. Ltd. vs. Iwitchings (1976) 1. 0.8225 at 241.

“Estoppel is not a rule of evidence – it is not a cause of action, it is a simple principle of justice and equity. It comes to this: when a man, by his words or conduct, led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so.”

See also, Ezewani vs. Onwordi (1988) 4 NWLR (Pt. 33) 27, Ashibuogwu vs. Attorney-General of Bendel State (1988) 1 NWLR (Pt. 69) p. 138, Iloabachie vs. Iloabachie (2000) 5 NWLR (Pt. 656) 178 at 219.

With respect to the above, neither the denials of the Appellant’s signature on Exhibits 1, 5 and 6 nor his complaint on the procedure adopted by the learned trial Judge in making use of Exhibits 5 and 6 to fix his signature on Exhibit 1 could be seriously countenanced. This is because, the learned trial Judge was not in error in finding that the contested signature on Exhibits 1, and the compared signature on Exhibits 5 and 6 are made by one and the same person, that is the Appellant. The only important question for the enquiry as to signature was to have sufficiently convincing evidence as to the writer of the signature on Exhibit 1, which was compared by PW5 with those in Exhibits 5 and 6.

Both the Appellant and PW4 Etubom Ignatius Effanga Archibong who is the current Village Head of Edik Idim Ikot Effanga and Secretary of Effanga Offiong House Council amongst others were present when the Appellant witnessed Exhibit 1 for the Respondent. Exhibits 5 and 6 were in the custody of PW4 who as a result of his position as Secretary to the Council has become quite familiar through correspondences to the signature of the Appellant. The learned trial Judge was therefore right in accepting the evidence of PW5, the handwriting expert that Exhibits 1, 5 and 6 were made by one and the same person. The procedure described by the learned Counsel for the Appellant as to the need to collect a specimen signature of the witness, in this case the Appellant for comparison with previous written statements related to the discretionary powers of a court in Section 108 (2) of the Evidence Act Section 108 (1) of the Evidence Act as well as Sections 57(1) and 61 clearly provide and cover the procedure adopted by the learned trial Judge in the instant case.

Section 108 is sub-titled comparison of signature, writing, seal or finger impressions with others admitted or proved” Section 108 (1) reads:

“In order to ascertain whether a signature, writing, seal or finger impression is that of a person by whom it purports to have been written or made, any signature, writing seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.”

In the instant case, the evidence of PW4 which fixed the signature on Exhibits 1, 5 and 6 on the Appellant has made it possible for the learned trial Judge to connect the Appellant or find a nexus between the Appellant and the opinion of PW5 – the handwriting expert that Exhibits, 1, 5, and 6 were made by one and the same person. It must be mentioned that in his brief of argument the learned Counsel for the Appellant made a rather ridiculous suggestion that consequent upon the denial of the Appellant of Exhibit 1 and also Exhibits 5 and 6, the learned trial Judge should have compared herself the Appellant’s disputed signature on Exhibit 1 with his undisputed signatures in Exhibits 13, 15 and 16. This suggestion appears to me ridiculous because apart from the fact that Exhibits 13, 15 and 16 were in the custody of the Appellant and were produced and tendered by the Appellant, looking through Exhibits 13, 15 and 16 from the record of the court myself, I noticed there are glaring and perhaps deliberate alterations on the signature of the Appellant on each of those documents.

The Appellant contend that Exhibit 1 was not endorsed by Etubom Offiong Ita who according to him was admitted in the evidence of PW4 as the head of the Effanga Offiong House in 1976 when Exhibit 1 was executed. And also, that Exhibit 8 contains an admission against interest of the Respondent that Edik Idim Ikot Effanga is the Property of Offiong Effanga and not that of his father Effanga Offiong.

The Respondent claimed that the seeming contradiction in the evidence of PW4 had earlier on been explained by the evidence of PW2 who said that in 1976, Etubom Offiong Ita was the Henshaw Town Clan Head and not Family Head to Effanga Offiong. But that in any event, the Appellant not being a member of the Effanga Offiong family and having not traced his title to the Family cannot be heard to complain about the internal affairs of the family when the suit does not deal with intra-family issues. First, I do not agree with the learned Counsel for the Appellant that Exhibit 8 creates any admission against the interest of the Respondent’s predecessors -in – title in this suit. This is because the meeting in Exhibit 8 consists of members of the larger Effanga Offiong family headed by Etubom O. A. Ita and Chief A. E. Archibong representing the sub-family of Efio Effanga, the predecessors in title to Offiong Effanga and it was agreed that representations of the families including that of Efio Effanga would continue to sign Agreements in respect of Edik Idom Ikot Effanga where the Respondent’s land is situated.

By Section 23 of the Evidence Act admissions are relevant as against the interest of the maker, they cannot generally be proved by or on behalf of the maker.

In the instant case, there is nothing in the content of Exhibit 8 which constitutes an admission against the interest of the larger or the umbrella family of Effanga Offiong, the predecessors -in-title to the Respondent.

On the question of the endorsement of the family land to Exhibit 1, learned Counsel for the Appellant cannot be faulted on the restatement of the rule in the case of Ekpendu vs. Erika 4. F.S.C. 79 and applied in Babayeju vs. Ashamu (1998) 7 SCNJ 158 to the effect that the sale of family property by the Head of the Family, without the concurrence of the Principal members of the family is voidable whilst a sale by principal members of the family in which the Head of the Family does not concur is void ab initio. This age long rule became necessary for the protection of the family property of the communities in Africa for generations unborn.

However in the circumstances of this case the question is who can invoke the rule?

In Dada vs. Garba (1995) 8 NWLR (Pt. 411) 12, the Supreme Court held that a member of a family has capacity to sue to protect family property. Similarly in Babayeju vs. Ashamu (1998) 9 NWLR (Pt. 567) 546, the Supreme Court also held that any member of the family whose interest is threatened by the wrongful alienation or wrongful interference with the family property can sue to protect his interest whether with the consent or without the consent of other members of the family, for if he does not act he may find himself being held to be standing by when his rights were being taken away. See also Ugwu vs. Agbo (1977) 10 SC 27, Melifonwu vs. Egbuji (1982) 9 SC 145, Orogan vs. Soremekun (1986) 5 NWLR (Pt. 44) 688, Olowosayo vs. Adebanjo (1988) 4 NWLR (pt. 88) 275, Odeneye vs. Efunuga (1990) NWLR (Pt. 164) 618. The case of Babayeju vs. Ashamu (supra) relied on by the learned Counsel for the Appellant concerns an intra-family dispute whereby some members of the family sought to void a Deed of conveyance executed in favour of purchasers without the consent or concurrence of the Head of family.

That case, to my mind is distinguishable from the instant case which has no element or reliefs based on intra-family dispute but concerns a situation where a total stranger to the family who has not traced his own title to the Effanga Offiong family now sought to void the Respondents instrument of title. I therefore agree with the learned Counsel for the Respondents that the decision of the Supreme Court in Onigbede & Ors vs. Balogun & Ors (supra) where it was held that the Defendants who are not members of Urere family and were not claiming their entitlements to the land in dispute through any of the three branches of Urere family cannot be heard to complain about the partitioning of the Urere family land is more applicable to the facts and circumstances of the present case. Another distinguishing factor between the instant case and the decision of the Supreme Court in the case of Babayeju vs. Ashamu (supra) relied on by the learned Counsel for the Appellant is that in the Babayeju vs. Ashamu case (supra) the Head of the family sought to void a Deed of Conveyance, Exhibit E executed in favour of purchasers as against the principal members of the family.

On the other hand, in the instant case what was sought to be voided by the Appellant who is not even a member of the Effanga Offiong family is Exhibit 1 – a mere purchase Receipt from which the Respondent claimed an equitable interest in the land in dispute only when he was led into possession. The Exhibit E in the Babayeju vs. Ashamu’s case (supra) creates a legal title, which would be proved as such consequent on the Deed of conveyance without much ado. Exhibit 1 in the instant case would not have on its own and ordinarily convey even an equitable interest until the Respondent was led into possession. The equitable interest of the Respondent in the land in dispute was not dependent on Exhibit 1 per se but also on the fact that he was led into possession by his vendors, in this case accompanied by the Appellant.

Furthermore, for yet other reasons, the Appellant in this case could not be heard to complain either on the circumstances of the Respondent’s title or on the capacity of the Effanga Offiong family to donate an equitable title to the Respondent.

This, is because Exhibit 5, written by the Appellant to the family Head of Effanga Offiong on 5th May 1989 complaining that the Effanga Offiong family should cause the Respondent to pay him compensation contains a clear admission, an acknowledgment not only of the Respondents ownership of the land in dispute but also of the right of the donor family to alienate the land in dispute to the Respondent.

In a different category entirely is Exhibit 7 also written by the Appellant as a letter of apology for his insubordination perhaps on an unrelated issue to the Etubom and the entire members of Etinyin Effanga Offiong family. To use the words of the Respondent’s Counsel, Exhibits 6 and 7 demonstrate that the Appellant “recognized the authority and supremacy of Effanga Offiong family as the owner of all lands in Edik Idim Ikot Effanga.”

Finally on the Appellant’s submission on Issue No. 2 that the lessor’s signature on Exhibit 1 read “I. E. Archibong, and not A. E. Archibong, compared with Exhibit 4, a photocopy produced by the Respondent and tendered at cross-examination through PW1; I am in agreement with the learned Counsel for the Respondent that the allegation of fraud on the document is an imputation of the criminal offence of forgery and therefore, requires proof beyond reasonable doubt. Unfortunately, the Appellant did not lead any further evidence on the documents. It is trite law, that an allegation of crime in civil proceedings must be proved beyond reasonable doubt. Section 138 (1) of the Evidence Act provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. The allegations of mutilation of signature in Exhibit 1 are purely criminal in nature and that was not proved beyond reasonable doubt. Adamu vs. A.G Bendel State (1986) 2 NWLR (Pt. 22) 284, Agih vs. L. E. Ejikinye Bros Ltd. (1992) 3 NWLR (Pt. 228) 200.

For the reasons given above, Issue NO.2 is resolved against the Appellant.

Issue No. 3 concerns the Appellant’s counter-claim. A counter-claim is a fresh and distinct claim from the Plaintiff’s claim against a Defendant. The Defendant/Counter Claimant would also have to step into the shoes and carry the burden of a Plaintiff in proving his counter claim. The Appellant/Counter Claimant in this case relied on traditional evidence in proof of his title. He claimed that the land in dispute belonged originally to the Obutong people, who gave the land to his late grand mother Madam Nyong Essien Abasi and that her only son Okon Akwa, the Appellant’s father inherited the land before he gave the land to him (the Appellant). Unfortunately, the Appellant never called anybody from Obutong as a witness. Rather, PW6 Chief Archibong Adim Edem who testified as the Secretary to Obutong/Edik Idim Clan Council said categorically that all lands in Edik Idim including the land in dispute was given to Effanga Offiong family and that the land in dispute was not given to Madam Nyong Essien Abasi.

In these circumstances, the learned trial Judge was right to have held that the Respondent had proved better title to the land in dispute. Where a Plaintiff as the Appellant Counter-Claimant in this case claims for damages for trespass, his title to the land allegedly trespassed upon is thereby put in issue, he must therefore, first establish his title to the land in dispute before proceeding to establish possession thereof. Michael Odunze & 5 Ors vs. Nwosu Nwosu & 4 Ors (2007) 13 NWLR (Pt.1050) 1 at 53.

And where two parties as in the instant case claim to be in possession of land the law ascribed possession to the one with better title. Mogaji vs. Odofin (1978) 4 SC 491, Aromire vs. Awoyemi (1972) 1 ALL MLR 101, Adeshoye vs. Shiwoniku (1952) 14 WACA 86, Labiran vs. Labiran (1988) 3 NWLR (Pt. 80) 66 Danen Adanyi vs. Jondo Anwase (2006) 12 NWLR (Pt. 993) 183 at 200.

Accordingly Issue NO.3 is resolved against the Appellant. Having resolved the three issues in this appeal against the Appellant, the appeal lacks merit and it is hereby dismissed.

There shall be N10,000.00 cost in favour of the Respondent.

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Other Citations: (2008)LCN/2978(CA)