Edem Ekpenyong & 3 Ors Vs Chief Akiba Etok Ayi & Anor (1973)

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COKER, J.S.C. 

The present appellants are the defendants to an action instituted against them by the respondents as plaintiffs, in the High Court, Calabar, (South Eastern State) in which the plaintiffs claim a declaration of title to land situate in “Ekene Village in Okoyong Division” and called by the plaintiffs “Ekene Esuk”, 100 pounds damages for trespass and a perpetual injunction. The plaintiffs’ statement of claim avers that the defendants had been sued “for themselves and on behalf of the family of Edem Ekpenyong.” This is contained in paragraph 2 of the statement of claim, which reads in full as follows:

“The defendants are Efiks and the 1st defendant is the head of Edem Ekpenyong family. The 2nd, 3rd and 4th defendants are members of the said family of Edem Ekpenyong, a branch of Eyamba family of Calabar.The defendants are sued for themselves and on behalf of the family of Edem Ekpenyong aforesaid.”

The statement of claim further states that the ancestor of the plaintiffs,one Agbo Ebe, was the original owner of the land in dispute, the land being part of lands awarded to Agbo Ebe on a share-out of lands acquired by conquest by the progenitor of the plaintiffs and his allies. By their statement of defence, the defendants deny that Agbo Ebe ever occupied or owned the land in dispute and with respect to their own ancestry paragraph 2 of the statement of defence states:

“In answer to paragraph 2 of the statement of claim the defendants deny that they are Efiks or that they hail from Eyamba Family of Calabar. They hail from Ekene Iquo Akpo Ebo Family.”

At the trial, the plaintiffs gave evidence to support their statement of claim.

One of the plaintiffs’ witnesses by name Ayi Ita Ekpo, a farmer, gave evidence inter alia as follows:

“The defendants are descendants of Iquo Agbo Ebo, the daughter of Agbo Ebe, plaintiffs’ ancestor. The defendants’ male ancestor came from Eyamba, in Calabar.”

Another of plaintiffs’ witnesses Etubom Ekpenyong Otu Ekpo, had this to say of the defendants in the course of her evidence under cross-examination:

“Q. Who was Iquo Agbo Ebo

A. She was the daughter of Agbo Ebe. Q. Where did she live

A. I dont know.”

For the defence the second defendant, Okokon Ekpenyong gave evidence and stated inter alia that the land in dispute called and known by the defendants as Ekene Iquo Agbo Ebo was so named after Iquo Agbo Ebo, the daughter of Agbo Ebo. He stated that he was related to Agbo Ebo and that Iquo Agbo Ebo was the first person to live on the land in dispute. He stated further that Iquo Agbo Ebo was married (he did not know the name of her husband) and was one of the four children of Agbo Ebo, the others being Ayi Agbo Ebo, Akpo Agbo Ebo and Ebo Agbo Ebo. He denied that it was the plaintiffs’ ancestor that had given them the land on which the defendants were living. He stated positively that it was Agbo Ebe who had personally granted the land in dispute to his daughter Iquo Agbo Ebo, who was the ancestor of the defendants. In the course of cross-examination he was questioned about the concession made by his people sometime in 1951 and before the present action that the land in dispute was owned by the plaintiffs.

He answered as follows:

“Effiom Edem was sick, and I accompanied him to where he was being treated. When we came back home, we heard that our people had appealed to the plaintiffs to withdraw the cases that were still pending in the native court, and conceded to the plaintiffs, the ownership of the land in dispute. So, Effiom Edem, now dead, but then the head of the family, went to the plaintiffs and protested against such mover, and tore into pieces the agreement they had reached.”

Other witnesses gave evidence for the defence stating in effect that the land was a direct grant to Iquo Agbo Ebo from her father Agbo Ebo.

In his judgment Balonwu J. (as he then was) acceded to the claims of the plaintiffs and gave them judgment for declaration of title to the land claimed by them, 50 pounds damages for trespass and a perpetual injunction against the defendants. The learned trial judge remarked that on the pleadings, the plaintiffs based their case on conquest by their progenitor, Agbo Ebo, and their own succession to his share of the conquered lands, whereas the defendants denied the acquisition of the land by Agbo Ebo and rested their case on “past and present occupation and cultivation of the land in dispute”. The learned trial judge further observed that at the trial the defendants’ story and case, according to the evidence which they gave before him, were to the effect that they and the plaintiffs had descended from a common ancestor, Agbo Ebo, who had given the land in dispute to his daughter Iquo Agbo Ebo and that they have succeeded to the land through the daughter of Agbo Ebo. He pointed out that despite this, the defendants prosecuted their case to the end without amending their pleadings. Eventually the learned trial judge concluded that the defendants and the evidence they gave in court had impliedly supported the plaintiff’s case of the original ownership of the land by Agbo Ebo; he treated the evidence of tradition as given by the defendants as having gone to no issue properly arising on the defendants’ statement of defence and gave judgment, as stated before, in favour of the plaintiffs.

The defendants have appealed to this Court against that judgment and in this Court the ground of appeal argued on their behalf is worded thus:

“(a) the statement of claim and the statement of defence do not properly define the real matters in controversy between the parties; and

(b) accordingly there could have been a substantial miscarriage of justice. ”

The argument canvassed in support of the ground of appeal is that the evidence of the defendants was clearly a departure from their pleadings, and that the plaintiffs who had in their own statement of claim described the defendants as Efiks had later admitted that the defendants were related to Iquo Agbo Ebo, that the pleadings had misconceived the whole case and that the case should therefore be sent back to the lower court for a re-trial or that this court should enter a non-suit against the plaintiffs. Learned counsel for the defendants drew our attention to the decision of the West African Court of Appeal in the case of Uzonwanne Nwakuche & Ors. v. Peter Azubuike & Ors. (1955) 15 W.A.C.A. 46, where at page 47, de Commarmond Ag. C.J. delivering the judgment of the court observed as follows:

“If (as we think) it is not unlikely that the statement of claim failed to set out the case in sufficient detail it is more consonant with the ends of justice not to debar the plaintiff from putting up his claim again, the more so as the defendants did not dispute the plaintiff’s claim in respect of a small portion of the Njachi land.”

On the other hand learned counsel for the plaintiffs contends before us that the learned trial judge had come to a right decision on the evidence legally put forward in court and accepted by him and that on the principle of the decision in Oroko v. Chuka Ero (1964) N.N.L.R. 111, the defendants must stand or fall on the case which they made in the lower court and should not be allowed to re-open the case.

We point out straightaway that the learned trial judge was entitled as he did, to make the necessary appraisal of the evidence before him and it cannot be said, nor has it been said, that he had failed to do this. He concluded rightly in our view, that the evidence given by the defence at the trial was not in support of their pleadings in their statement of defence and he decided to, and indeed did, disregard such evidence. The propriety of taking such a course is now beyond question and undoubtedly, the learned trial judge would have fallen into serious errors of misdirection if he had regarded as evidence the materials before him which went to no issue on the pleadings. (See the decision of this Court in the case of Emegokwue v. James Okadigbo, SC. 302/71, decided on the 19th of April, 1973, where many of the other authorities on this point were discussed.)

In support of his submissions that the issues were imperfectly represented by the pleadings, learned counsel for the defence, as we have pointed out before, relied on the case of Nwakuche v. Azubuike, supra. In that case however it was the plaintiffs’ case that the court held had been imperfectly reflected by the statement of claim and the plaintiffs were therefore penalised by being non-suited. In the present case, taking the best view of the arguments before us in favour of the defendants, it would be the defendant’s case that had been imperfectly reflected, either by the pleadings or by the evidence given in court and it is difficult to see how otherwise the defendants could be treated than by entering judgment against them. Learned counsel for the defence had urged us to enter a non-suit against the plaintiffs, but we are satisfied that this will be contrary to the decision in Nwakuche’s case for it would be tantamount to penalising, not the defendants whose case was stated to have been imperfectly represented, but the plaintiffs who maintained a continued consistency, both in their pleadings and by the evidence which they gave in court.

Besides this, there is another aspect of the case which deserves some passing remark. The argument on behalf of the defendants does not take into account the fact of the case. The defence was a complete denial of the original ownership of the land by Agbo Ebe and that that person ever occupied the land. The learned trial judge preferred and accepted the evidence of the plaintiffs on these points which are admittedly vital and crucial to the determination of the case and gave judgment for the plaintiffs accordingly. We cannot find that anywhere, the plaintiff’s case was imperfectly put forward and rather, we think that the defendants were never sure of the defence which they had (if any) to the case of the plaintiffs.

We have come to the conclusion that we are not able to accede to the grounds of appeal argued on behalf of the defendants. The appeal fails and it is dismissed.

The defendants will pay to the plaintiffs the costs of the appeal fixed at N120.

Other Citation: (1973) LCN/1721(SC)