Effanga Effiom Henshaw V. Effanga Essien Effanga & Anor (2008)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the judgment of Honourable Justice O. Ita, C.J. of the Cross River State High Court of Justice sitting at Calabar in Suit No. C/211/82 delivered on the 6th of March, 2005.

By an amended statement of claim dated the 21st of December, 1984, the appellant claimed as follows:

“1. A declaration that the plaintiff is the person in whom was vested immediately before the commencement of the Land Use Act, 1978, the piece or parcel of land situate and lying within the Municipality of Calabar between Ebito and Adam Duke Street and abutting on the said Adam Duke Street and Mayne Avenue of the annual value of N10.00.

2. A declaration that the plaintiff is the person entitled to apply for and obtain the grant of a statutory right of occupancy in respect of the aforesaid piece of land.
3. A declaration that the purported alienation of roughly the north-eastern half of the said piece of land (i.e. the land-in-dispute) by the 1st defendant to the 2nd defendant without the knowledge or consent of the plaintiff is wrongful, illegal and null and void.
4. N50, 000.00 (Fifty Thousand Naira) damages for trespass in that sometime before 1981 the 2nd defendant, purporting to acquire the said half of the plaintiff’s said piece of land from, and acting on the authority of the 1st defendant, cleared the same, erected a concrete wall and constructed a motor mechanic workshop thereon, and has refused to vacate the land inspite of demand by the plaintiff therefore, to the damage of the plaintiff.
5. Perpetual injunction to restrain the defendants, their servants, agents, and/or privies from remaining on the said half piece of land and from ever again interfering with the right, title or interest of the plaintiff to, in or over the said half piece of land.
6. An order of demolition of all and every structure on the said half piece of land within 14 (fourteen) days after the date of judgment in this suit or within such other period thereafter as the Honourable Court may consider convenient or expedient. At pp. 43 – 45 paragraph 18 (1) – (6).”

The case of the appellant at the court below is that the respondent, who was the 1st defendant at the court below, broke and entered his land without his consent. The appellant alleged that the land in his possession had been given to him by his grandmother under Efut Customary Law. The respondent on the other hand alleged that the land in dispute was granted to him by Effanga Offiong Family of Henshaw Town, Calabar. The respondent did not deny entry on the land in dispute and leasing same to the 2nd defendant (now deceased) who built on it. He alleged that the land is within the Effanga Offiong Family land. The learned trial Chief Judge at the conclusion of the hearing, without any evaluation and ascription of probative value to the evidence of the witnesses delivered the following judgment at page 158 of the record:

“It was the plaintiff who asserted that the land in dispute was outside Effanga Offiong land in Exhibit 1. The burden was on the plaintiff throughout and it did not shift.

The parties came to court armed with old court judgments as certified true copies. Both say that the land verged Brown is the bone of contention. Each party claims that what will determine this case is resolution of the issue whether Brown verge is outside Effanga Offiong Land or inside. It would appear that if it was within Effanga Offiong land, then the case will be decided in favour of the 1st defendant. It held that brown verge is outside Effanga Offiong’s land and Effanga Offiong could not have granted it to 1st defendant then the case goes in favour of the plaintiff.

I have not been able to find evidence in the whole avalanche that has proved the position above. It seems to me clear that the case ought to be and is hereby struck out without costs.”

Dissatisfied with the judgment the appellant appealed to this court on 3 grounds. The appellant in his brief of argument, dated 18/10/01 and filed on 19/10/01 formulated three issues for determination. The three issues are as follows:

“1. Whether there was evidence before the Honourable Court showing that the brown verge in Exhibit “3” tendered by the plaintiff is outside Effanga Offiong land.

2. Whether the burden of proof that the land-indispute is part of Effanga Offiong’s land was not that of the defendant who so asserted.
3. Whether the learned trial Chief Judge adopted the right approach in his consideration of the case by merely summarising the addresses of counsel without consideration of the evidence adduced before him.”

The respondent in his brief dated 5/12/01 and filed on the same day also formulated three issues for determination. The issues are as follows:

“1. What need be established in action for declaration of title to land when the boundaries are in dispute?

2. What are the general principle on which the courts act in order to grant decree of declaration of title?
3. Whether the finding of fact by the trial Judge was justified.”

The appellant on Issue No. 1 contended that contrary to the findings of the trial Judge that there is no evidence to support the case of the appellant, there is abundant evidence in the record in support of his case. Counsel for the appellant, Etubom E. E. O. Archibong, referred to the evidence of PW1 at page 84, lines 19 – 21; PW3 at page 89 lines 16 – 19; DW3 at page 102, lines 20 – 22. He also referred to page 168 lines 10 – 11 of the record and concluded that there was abundant evidence to answer the issue posed before the court and it ought to have given judgment in favour of the appellant.

On Issue NO.2, learned counsel for the appellant submitted that the onus of proof of whether the land in dispute was Effanga Offiong’s land clearly lay on the respondent who so averred and the lower court wrongly misplaced this burden on the appellant and this led to a miscarriage of justice. Relying on the provisions of section 35 to 57(1) and 146 of the Evidence Act, Cap. 112 counsels concluded that the respondent having failed to discharge the evidential burden judgment should have been given to the appellant to particularly having regard to Exhibits 1, 2 and 4. He referred to Osakwe V. Odi (1990) 5 SCNJ 19; Onobruchere V. Esegine (1986) 2 SC 385 and Bello V. Eweka (1981) 1 SC 101 in support of his submission.

On Issue NO.3, it was contended for the appellant that the trial court did not review the evidence, or evaluate the evidence or make any findings of fact therefrom. Counsel referred to Karibo V. Grend (1992) LRCN 766; Sanusi V. Ameyogun (1992) 4 SCNJ 177; Atoyebi V. Gov. of Oyo State (1991) 17 LRCN 73; Adeyeye V. Ajiboye (1987) 7 SCNJ 1; Anaeze V. Anyaso (1999) 13 LRCN 832 and Shell, BP Dev. Co. V. Cole (1978) 3 SC 183, and submitted the judgment of the court below is not perfect.

On Issue NO.1, learned counsel for the respondent, Mr. R. N. Akpan, made copious references to the averments in the pleading of the parties, namely, paragraphs 9(a), 10(a) & (b) and 11 of the appellant’s statement of claim and paragraphs 6, 7(a), 8 and submitted that the appellant’s survey plan, Exhibit 7, had been put in issue. He relied on Omeregie V. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41; Tumo V. Murana (2001) FWLR (Pt. 33) 369 and Abiodun Adelaja V. Yesufu Alade (1998) 68 LRCN 784. He submitted that by sheer weight of the evidence, the quality of the evidence of the 1st respondent should be preferred. He referred to Odofin V. Magaji (1978) 1 LRCN 212 and Archibong V. Akpan (1992) 4 NWLR (Pt. 238) 750.

On Issue NO.2, counsel submitted that it was the duty of the appellant to adduce credible and admissible evidence through witnesses in an attempt to outweigh other evidence and establish satisfactorily the title of the appellant and that the appellant must succeed on the strength of his own case. He referred to Atanda V. Ajani (1989) 3 NWLR (Pt. 111) 511. Mr. Akpan also submitted that from the pleadings and evidence, the 1st respondent has been shown to be in possession of the land and that the 1st respondent was put in possession of the land in dispute by Exhibit 5. He submitted further that the appellant did not discharge the burden cast on him regarding the fact that the 1st respondent was in possession. He referred to section 146 of the Evidence Act, 1990, and the case of Amakor V. Obiefuna (1974) 1 NMLR 331. He pointed out that the appellant relied on his root of title being a grant from his grandmother by Efut Customary Law but the appellant did not call evidence to prove his root of title. He referred to section 14(1) of the Evidence Act, 1990; and the case of Nwofor V. Nwosu (1992) 9 NWLR (Pt. 264) 229; NIPC Ltd. V. The Thompson Organisation (1969) 1 All NLR 138; and concluded that since the appellant did not lead evidence on the root of title, he must be taken to have abandoned it.

On Issue NO.3, Mr. Akpan submitted that having regard to Issues 1 and 2, the evidence led by the appellant which did not show that the land in dispute was outside Effanga Offiong land as contested in 1961, (Exhibits 1 and 2), the learned trial Chief Judge was correct in his findings. He pointed out that the principle is that he who asserts must prove and the appellant failed to prove his assertion. In support of his contention he referred to Anthony Odunukwe V. Adm. General of East Central State (1978) 1 SC 25 – 31.

Upon being served with the respondent’s brief, the appellant filed a reply brief dated 18/10/01 and filed on 19/10/01.

The respondent filed a cross-appeal on 28/06/05, pursuant to the leave granted to the respondent on 1/6/05 by this court. I shall deal with the cross-appeal in due course. For now, I shall concern myself with the main appeal.

I have carefully reflected on the issues for determination formulated by the parties in this appeal. The two sets of 3 issues formulated are like two sides of the same coin. I have in the circumstances chosen to adopt the 3 issues formulated by the appellant for the determination of this appeal because they are more derivable from the grounds of appeal and they aptly encompass the issues that have arisen in this appeal.

After a careful consideration of the facts and circumstances of this appeal, I find it convenient and reasonable to begin with Issue NO.3. The issue here is that the trial Chief Judge did not review and evaluate the evidence adduced by the respective parties and he did not put the evidence on an imaginary scale in order to determine which evidence has more weight.

A cursory glance at the judgment of the learned trial Chief Judge at pages 139 – 158 reveal the following: at pages 139 – 140, the trial Chief Judge recapitulated the claims of the appellant. From pages 141 – 144, the trial he summarized the submissions of learned counsel for the respondent. From page 144 lines 23 – 32 to page 157 of the record, he summarized the submissions of the counsel for the appellant. Then at page 158 of the record judgment was delivered.

It is pretty obvious that the learned trial Chief Judge conveniently avoided the evidence of witness adduced before him. He did not evaluate and appraise the evidence of the witnesses in the case. He did not put the evidence of the witnesses on an imaginary scale as enjoined in Magaji V. Odofin & Ors. (1978) 1 LRN 212, and determine which witness to believe or which to reject or which one has more weight on a balance of probabilities. There was no finding of fact from the appraisal and evaluation of the evidence of the witnesses. The evaluation of evidence by a trial court is of utmost importance in the adjudication process. There cannot be a finding of fact by a trial court when the court has not evaluated the evidence before it.

In Magaji V. Odofin & Ors. (supra), the Supreme Court held that before a Judge in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he must put the totality of the testimony adduced by both parties on an imaginary scale. He should weigh one side against the other and then decide upon the preponderance of credible evidence which weighs more. See Woluchem V. Gudi (1981) 5 SC 291 at 294; Omokhafe V. Mil.-Admin., Edo State (2001) 14 NWLR (Pt. 733) 290 at 310 – 311. In Trade Bank V. Chami (2004) All FWLR (Pt. 235) 118 at 145 – 146, this Court held thus:

“Despite the general rule on the style or approach in judgment writing, which gives a trial Judge an inhibited discretion to use his own style, there are some minimum sets or recommended standard and stages to be adopted or followed in writing or reaching a fair judgment. These include:

(a) It should start first considering the evidence led by the plaintiff to see whether he has led evidence on all material issues he needs to prove. At this stage, there is no question of prayer or belief or non belief of the witnesses. If the plaintiff has failed to lead evidence or if the evidence led by him is so patently unsatisfactory, then he has no made out what is usually called a prima facie case in which case the trial court does not need to consider the case of the defendant.

(b) In the next stage the court should then evaluate the evidence. In doing so, it must bear in mind the following process:

(1) On whom the onus of proof lies and

(2) Whether the particular type of evidence called requires any special approach.

(3) In the last stage after evaluating the evidence, the trial Court will then make its finding which having regard to the party on whom the onus lies will determine its ultimate verdict.”

“Further more, in its task of evaluating evidence the trial Court is enjoined as required to place the evidence called by either sides to the dispute or conflict on every material issue, on either side of an imaginary scale and weigh them together and which ever outweigh the other in terms of probable value ought be accepted. See Sanusi v. Amoyegun (supra); Mogaji V. Odofin & Ors. (supra) and Whyte V. Jack (1996) 2 NWLR (Pt. 431) 407 at 442.”

Also in Mogaji V. Odofin & Ors. (supra) the Supreme Court stated the approach a trial Judge should adopt in arriving at its decision. That is:

“(a) he should first of all put the totality of the evidence adduced by both parties in an imaginary scale, he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together;

(c) he will then see which is heavier, not by the number of witnesses called by each party but by the quality of the probative value of the testimony of those witnesses.”

That is what is meant when it is said that a civil case is decided on the balance of probabilities.

In the instant case on appeal, the above procedure was not followed at all by the trial court. Invariably when a trial court fails to evaluate the evidence adduced by witnesses before it, it would arrive at a wrong or erroneous conclusion. In the instant case on appeal, it was no surprise that the trial court could neither make any finding nor deliver a good judgment.

Bearing the above in mind the judgment of the learned trial Judge is imperfect, perverse and it cannot stand. See Karibo V. Grend (1992) 9 LRCN 766 and Atoyebi V. Gov. of Oyo State (1994) 17 LRCN 73.

Ordinarily, where the trial court fails woefully to evaluate and appraise the evidence of witnesses adduced before it or to make any findings, the judgment of that court should be set aside and a retrial ordered.

However, the facts and circumstances of the instant case on appeal presents peculiar problem which should be addressed in the interest of justice and fairness. The case was instituted in 1982, at the court below and the proceedings commenced in January 1983. Hearing was concluded and judgment delivered by the trial Chief Judge on 6/3/2000. That meant that the case was conducted for a period of 18 years. In my humble view to order for a retrial in this matter will no doubt defeat the objective of justice in the adjudication process. It will cause an unnecessary delay and hardship on the hapless litigants. Justice delayed is justice denied. As at the date of this judgment this case on appeal had been on for 26 years. No one knows when the case will be concluded if sent back for retrial. Perhaps in another 26 years or so. In my considered view, this is an appropriate case where this court can evaluate the evidence of the witnesses and make its own findings.

It is settled law that the evaluation of evidence and ascription of probative value to such evidence are the preserve of a trial court which had the opportunity of hearing and assessing the evidence and demeanor of the witnesses. An appellate court does not normally disturb the findings except in the following circumstances:

“(a) Where the trial court did not make a proper use of the opportunity of seeing and hearing the witnesses at the trial.

(b) Where the trial court drew wrong conclusion from accepted credible evidence.

(c) Where the trial court took an erroneous view of the evidence adduced before it.

(d) Where the trial court’s findings were perverse in the sense that they were unsupported by evidence or did not flow from the evidence accepted by it.”

A decision is perverse:

“(a) Where it runs contrary to the evidence; or

(b) Where it has been shown that the trial court took into account matters which it ought not to have taken into account or shut its eyes to the obvious; or

(c) Where it has occasioned a miscarriage of justice.”

See Ebba V. Ogodo (1984) 1 SCNLR 372; Odofin V. Ayoola (1984) 11 SC 72; Bunye V. Akingboye (1999) 7 NWLR (Pt. 609) 31 and Anyakora V. Obiakor (2005) 5 NWLR (Pt. 919) 507.

If a trial court fails to appraise or evaluate the evidence before it the Court of Appeal is obliged to appraise, evaluate or re-appraise or reevaluate same to reach a decision that is fair and just to the parties in the case. See Anzaka V. Gov. of Nasarawa State (2005) 5 NWLR (Pt. 919) 448; Oko V. Ntukioku (1993) 2 NWLR (Pt. 274) 124 and Odinaka V. Moghalu (1992) 4 NWLR (Pt. 233) 1. Where a trial court fails to evaluate the evidence before it, the appellate court has power to intervene in the interest of justice. In the instant case on appeal, the trial court did not evaluate the evidence adduced at the trial. In the circumstances this court would intervene to evaluate the evidence and make proper finding. See Haruna V. Uniagric, Makurdi (2005) 3 NWLR (Pt. 912) 233.

The evaluation of evidence by a trial court is of utmost importance in the adjudication process. Evaluation of evidence is the primary function of the trial Court. That notwithstanding, where the evaluation of the evidence would not entail issues of credibility of witnesses and it is an issue of non-evaluation by the trial court, the appellate court is in a good position as the trial court to do its own evaluation. In the instant case on appeal the trial court did not evaluate or appraise the evidence of witness before it and he did not make any findings at all; the Court of Appeal is therefore entitled to intervene in the interest of justice. See Akintola v. Balogun (2000) 1 NWLR (Pt. 642) 532; Udoh V. Okitipupa Oil Palm Plc. (2005) 9 NWLR (Pt. 929) 58.

Having carefully perused the record of proceedings, I find that the evidence adduced in the case before the court of trial is mostly documentary evidence; to wit; survey plans notably Exhibits 1, 3, 4 and 8, here is no issue of the credibility of witnesses in this case. An appellate court is in as good a position as a trial court in the evaluation of documentary evidence. In Ishola V. U. B. N. Ltd. (2005) 6 NWLR (Pt. 922) 422 at 443, the Supreme Court held inter alia, that:

“Where the evidence adduced before a trial court is documentary and not based on the demeanour or credibility or witnesses, an appellate court is in as good a position as a trial court to evaluate such documentary evidence and draw necessary inferences from it…”

A cursory glance at the judgment of the court below show clearly as crystal that it is perverse and it has occasioned a serious or gross miscarriage of justice. In the circumstances this court can itself evaluate and appraise the evidence of the witnesses in the record and make findings as the trial court. See Nneji V. Chukwu (1996) 10 NWLR (Pt. 478) 263; Akibu V. Opaleye (1974) 11 SC 189; Adebayo V. Shogo (2005) 7 NWLR (Pt. 925) 467 at 481.

This now brings me to the general powers of the Court of Appeal in its adjudication process. Section 15 of the Court of Appeal Act, 2004, provides as follows:

“The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or errors in the record of appeal, and may direct the court below to inquire into and certify its finding on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant and may direct any necessary inquires or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance.”

I shall evaluate and appraise the evidence adduced before the court below and make my findings. Indeed Issue NO.1 in this appeal is relevant at this juncture. In Civil cases, the ultimate burden of establishing a case is as disclosed on the pleadings. The person who would lose the case if on completion of pleadings and no evidence is led has the general burden of proof. See Elemo & Ors. V. Omolade (1968) NMLR 359 and sections 135, 136 and 137 (1) and (2) of the Evidence Act, 1990.

The appellant pleaded facts which support his claim that the land in dispute is his own and that it is situate outside the Effanga Offiong Family land. Those facts are pleaded’ under paragraphs 5 – 12 of the amended statement of claim. I have chosen to reproduce the aforesaid paragraphs herein below:

“5. By Efut Customary Law, such part of Efut communal land that may be allotted to an indigenous Efut man or woman becomes upon allotment his or her private property which he or she can dispose of at will.

6. The late Madam Affiong Edet Abasi Mbo Orok, the aforesaid maternal grandmother of the plaintiff was in the 1930’s allotted by the then Efut Abua Council land in Efut Abua which includes the land in dispute in this suit; she was also allotted land in Akpabuyo by the said Efut Abua Council.
7. The late Madam Affiong Edet Abasi Mbo Orok had two daughters who survived her, namely, Mary Etim Ata and Obo Etim Ata, plaintiff’s mother. Madam Affiong Edet Abasi Mbo Orok gave them her Akpabuyo land inter vivos and according to Efut customary law. The land, of which the land in dispute in this suit is a part, was in accordance with Efut customary law given by the late Madam Affiong Edet Abasi Mbo Orok to the plaintiff inter vivos in or about 1975. Madam Affiong Edet Abasi Mbo Orok died in 1977.
8. After the gift of the land to the plaintiff the plaintiff cultivated a cassava farm on it; and after the death of Madam Affiong Edet Abasi Mbo Orok the plaintiff erected a shed with scantling and corrugated iron roofing on the land in which he was moulding and stacking cement blocks.

9(a) The entire land gifted to the plaintiff as aforesaid is shown, delineated and verged BROWN in the Plan No. ESA/10323(LD) filed with original Statement of Claim and made and signed by E. S. Akpan, Esquire, Licensed Surveyor of Uyo on 29th March, 1983, upon which the plaintiff still relies.

(b) The said land is bounded generally and for all practical purposes as follows:

on or towards the North by landed property of Dr. E. E. Eyo, being a portion of Efut land granted by the Efuts to the said doctor;

on or towards the East by the boundary of Abasi Obori land within which land is a little portion of Ebito Street at its junction with Mayne Avenue;

on or towards the South by Mayne Avenue aforesaid and the landed property of Okon E. Okon, being a portion of Efut land granted by the Efuts to the said Okon and which also abuts on Mayne Avenue; and

on or towards the West by an extension of Adam Duke Street.

(c) There is a water stand pipe at the corner of the said land where it abuts on Mayne Avenue and shares a border with Abasi Obori land as aforesaid. Electricity is also available to plaintiff’s said land.

10(a) In the Calabar High Court Suit No. C/31/69 Between Chief Maurice E. Archibong & 2 Ors., suing “for themselves and on behalf of Efanga Offiong Family, Calabar” And Etim Edet, sued” for himself and on behalf of Abasi Obori Combined Family Meeting, Calabar”, title to the exclusive possession of the land in that suit – Abasi Obori land – was awarded to the Family. The said award was upheld by the Supreme Court of Nigeria on appeal.

(b) Abasi Obori land in dispute in the said High Court Suit was delineated, shown and verged PINK on Plan No. EPS/2401(LD) made and signed by Okon E. Eyo, Esquire, F. N. I. S., F. R. G. S., Licensed Surveyor and Architect of Calabar, now deceased, on 5th December, 1969, and countersigned for the Surveyor-General, Calabar, on 23rd December, 1969. The said Plan was an Exhibit in the said suit.

(d) In upholding the judgment of the High Court in the said suit the Supreme Court stated inter alia:

“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 Licensed Surveyor and Architect dated 5th December, 1969, Exhibit A in the proceedings which Exhibit shall form part of the judgment of the High Court, Calabar, in Suit No. C/31/1969;”

The plaintiff will at the trial rely on the said Plan and Judgment. He will also rely on a notice headed-

“PUBLIC NOTICE

RE EFUT ABASI OBORI LAND”,

made by Orok Inang lronbar, Esq., Solicitor for Effanga Offiong Family, on 14th October, 1980, and published at page 11 of the Chronicle Newspaper issue of Wednesday, November 5,1980.

11(a) The land gifted to the plaintiff, as hereinbefore stated, lies outside and does not form part of Efut Abasi Obori land. The Western boundary of Efut Abasi Obori land relative to the position of plaintiff’s land is shown (enlarged), delineated and verged GREEN on plaintiff’s aforesaid Plan No. ESA/10323(LD).

(b) On the said boundary there are a few boundary trees, and just inside the said boundary (that is, within Efut Abasi Obori land) lies the building of Chief Ekpenyong E. Bassey, a relation of the plaintiff (now deceased), formerly one of the leading members of the Family. Until the aforesaid gift to the plaintiff no member of the family has owned land outside the said boundary (that is, to the West of the Green verge).

(c) All the land West of that boundary is part of Efut communal land, except so much of it that has become private property through allocation to Efut members and inheritance therefrom, gift, or alienation at a valuable consideration to non-Efut persons.

12. The land in dispute in this suit is verged RED on the aforesaid plaintiff’s plan.”

The respondent also pleaded facts in support of his defence claim in paragraphs 5 – 10 of his statement of defence as follows:

“5. Paragraphs 6, 7 and 8 of the statement of claim are denied. The 1st defendant avers that the land in dispute and its environ are the property of Effanga Offiong Family and no Madam Afiong Edet Abasi Mbo Orok had ever settled, occupied, leased or given out the land in dispute or any other lands within Effanga Offiong Family land.

6. The 1st defendant denies paragraph 9 of the statement of claim and avers that the land claimed by the plaintiff is the 1st defendant and Effanga Offiong Family land and is more particularly shown, delineated and verged ‘GREEN’ in Plan No. CD. 122/83 (LD) filed by the 1st defendant and drawn by D. O. Ekpo, License Surveyor, Calabar and thereon dated 27th October, 1983.
7. (a) The land verged BROWN in plaintiff’s Plan No. ESA/10323 (LD) dated 29th March, 1983 and signed by E. S. Akpan, Licensed Surveyor is particularly the 1st defendant’s land leased by Effanga Offiong Family to the 1st defendant as a member of that family in a Memorandum of Agreement dated 20th January, 1976 for which Stamp Duty was paid and it was duly stamped by Commissioner for Stamp Duties.

(b) Part of the said Agreement is Plan No. ESA/10439 signed by E. S. Akpan, Licensed Surveyor and dated 25th January, 1978. The 1st defendant shall during the trial hereon found on the above Memorandum of Agreement and plan.

8. The 1st defendant admits paragraph 10 of the statement of claim and adds that only part of Effanga Offiong Family land trespassed upon by Etim Edet was in dispute.
9. Paragraph 11 of the statement of claim is denied.

(a) The defendant’s land lies well within Effanga Offiong land. The Effanga Offiong Family sued one Etim Edet for and on behalf of Efut Abasi Obori to the extent of Abasi Obori trespass in Suit No. C/31/69 which is the area verged BROWN in defendant’s plan No. CD.122/83 (LD).

(b) Those settlers/occupiers who did not side with Etim Edet to perpetrate the above trespass were not sued. Hence the land in dispute in Suit No. C/31/69 shown on plan No. EPS/2401 (LD) is not the only land of Abasi Obori.

(c) The Effanga Offiong Family never had any land dispute with either Efut Abua or Efut Ekondo because they have always respected the Effanga Offiong Family boundaries. Plaintiff to the best of knowledge of the 1st defendant is not a member of any of the Efut families. Rather he is a member of the Effanga Offiong Family.

10. 1st defendant admits that land falsely claimed by plaintiff is verged RED in plaintiff’s plan and on 1st defendant’s plan.”

On the state of the pleadings it is apparent and clear that the main issue in the claim revolves on the ownership of the land in dispute, trespass to land and injunction, therefore, the root of title is automatically involved. See Kpanugo V. Kodadja 2 WACA 24; Ogunfaolu V. Adegbite (1986) 5 NWLR (Pt. 43) 509; Ajani V. Ladepo (1986) 3 NWLR (Pt. 28) and Akintola V. Ladipo (1991) 3 NWLR (Pt. 180) 508

In land cases such as the instant case on appeal, the onus of proof lies on the appellant, who was plaintiff at the court below. The appellant in doing so must rely on the strength of his own case and not the weakness of the defence. But this is subject to the qualification that the appellant can in doing so take advantage of such aspects and facts in the defence which supports his claim. The appellant has the initial onus to show a prima facie case of his root of title to the land in dispute before a consideration of the weakness of the respondent’s case. See Sanusi V. Amoyegun (1992) 4 SCNJ 177 at 180 – 187; Kodilinye V. Odu (1935) 2 WACA 336; Olujinle V. Adeagbo (1988) 2 NWLR (Pt. 75) 238.

In furtherance of the above the appellant testified in support of the averments in his amended statement of claim that he got the land in dispute as a gift inter vivos from his late grandmother in 1975.

The appellant, as PW1 at the court below, at page 71 lines 29 – 35, testified as follows:

“… The parcel of land in dispute is part of the parcel of land which grandmother gave me. She gave me the land in about 1975; she died in 1977. When the land was given me, I planted cassava on the land and I erected a shed with corrugated iron sheet and planks used in moulding blocks.”

The evidence of the appellant is supported by the evidence of PW3.

PW3 testified at page 87 lines 23 – 34 as follows:

“I live at Efut Abua NO.1 Waddel Lane. I am a farmer. I know the plaintiff in this case. Madam Afiong Edet Abasi Mbo Orok is known to me. She comes from Efut Abua. She is dead. I am Efik but maternally Efut Abua. The plaintiff is paternally Henshaw Town, but maternally Efut Abua. Late Afiong Edet Abasi Mbo Orok is grandmother of the plaintiff. A piece of land at Mayne Avenue was in 1975 granted to her grand son, the plaintiff. The owner of land was the late grandmother of plaintiff I was present during the grant. The late grandmother of the plaintiff invited me to the ceremony of granting the land to the plaintiff. I know the custom of Efut Abua – being maternally from there. It is an Efut custom for grandmother to grant land to grand son whose father is not from Efut.”

The evidence of PW3 was not challenged under cross-examination as to how the land in dispute was given to the appellant. PW3 was also not challenged on the Efut custom as to the devolution or gift inter vivos from the grandmother to the appellant. PW3 was not also challenged or contradicted on the fact that he witnessed the ceremony of the gift as aforesaid.

This is very important in view of the fact that in law the evidence of a witness which is unchallenged, uncontroverted and uncontradicted must be accepted by the trial court. See Egunike V. ACB Ltd. (1995) 12 NWLR (Pt. 375) 34; Imana V. Robinson (1979) 1 All NLR 1; Otuendon V. Olughor (1997) 9 NWLR (Pt. 521) 355; Adeleke V. Iyanda (2001) 13 NWLR (Pt. 729) 1 and Okoebor V. Police Comm. (2003) 12 NWLR (Pt. 834) 444.

Accordingly, it established that the land in dispute was a gift inter vivos to the appellant from his grandmother. Also that PW3 was present and witnessed the ceremony of the gift of the land in dispute to the appellant. The provisions of section 14(1) of the Evidence Act has been complied with. See Narter V. Narter 14 WACA 295.

In a claim for declaration of title the claimant must not only prove his root of title, he must establish the identity of the land in dispute. In this appeal, there was no issue raised in the pleadings as to the identity of the land is dispute. The appellant’s plan, Exhibit 3 and the respondent’s plan, Exhibit 8 show identical piece of land. Significantly, the respondent in paragraph 10 of his statement of defence admitted the identity of land in dispute in paragraph 12 of the appellant’s statement of claim. It is trite law that admitted facts need no further proof. Section 75 of the Evidence Act and Adebo V. Saki Estates (1999) 5 SCNJ 156. So there is no dispute as to the location or identity of the land in dispute.

Notwithstanding, the above, the appellant in his evidence indicated the boundaries of between Efut and Effanga Offiong in Exhibit 3 and that it is verged Green in Exhibit 3. It appears from the pleadings and evidence, the parties are agreed on Exhibit 1, (the plan) and Exhibit 2, the judgment of the Supreme Court in Suit No. C/31/69. Exhibit 1 is the plan of the land in dispute in Suit No. C/31/69. In Exhibit 1 Abasi Obori land is verged Pink, in Exhibit 2, Suit No. C/31/69 which was affirmed by the Supreme Court, it was declared that Effanga Offiong Family is entitled to the exclusive possession of Efut Abasi Obori land. Exhibit 1 tendered by appellant clearly show that the land in dispute in Suit No. C/31/69 is bordered by Efut land and Akim land. The appellant testified as PW1 at page 84 lines 19 – 21 that:

“Exhibit 1 is the whole land of Effanga Offiong there and not just part of land around the area in dispute.”

At this juncture, the issue now is whether the land in dispute is outside the Effanga Offiong Family land or within. If the land in dispute is within the Effanga Offiong Family land, then judgment will be given to the respondent. If it is outside then judgment will be given in favour of the appellant.

On this issue the appellant testified and tendered Exhibits 1, 2, 3 and 4 in support of his claim that the land in dispute is outside the Effanga Offiong Family land.

The appellant as PW1 testified at page 84 lines 18 – 24 of the record as follows:

“Exhibit 1 say that Effanga Offiong land in the area is exhausted, – that was the whole land. Exhibit ‘1’ is the whole land of Effanga Offiong there and not just part of land around the area in dispute…”

The appellant in his evidence in court testified that Exhibit 1 represents the land of the Effanga Offiong Family Land given to them in Suit No. C/31/69. The judgment is Exhibit 2. The Supreme Court on appeal held inter alia that:

“We confirm the declaration that the Effanga 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 Licensed Surveyor and Architect dated 5th December, 1969, Exhibit ‘A’ in the proceedings which exhibit shall form part of the judgment of the High Court, Calabar, in Suit No. C/31/1969.”

Plan No. EPS/2401/LD made by Okon E. Eyo dated 5/12/69 referred to as Exhibit A in the above judgment is, in this instant case on appeal, Exhibit 1. The judgment in Suit No. C/31/69 is Exhibit 2.

PW3 also testified at page 89 lines 16 – 19 of the record that:

“Plaintiff’s land is within Efut Abua land. Chiefs of Efut Abua gave the land to the plaintiff’s grandmother as their daughter.”

It is important to note that the respondent, in paragraph 8 of this statement of defence, admitted paragraph 10 of the appellant’s statement of claim completely. The effect of that admission is that the respondent is estopped from denying Exhibits 1, 2 and 4. Exhibit 1 is the plan used in Suit No. C/31/1969; Exhibit 2, the judgment of the High Court, Calabar, in Suit No. C/31/1969 which was affirmed by the Supreme Court; and Exhibit 4 is the Public Notice captioned: “Re Efut Abasi Obori Land” made by Orok Ironbar, Esq., Solicitor for Effanga Offiong Family on 14th October, 1980 and published at page 11 of the Chronicle Newspaper issue of Wednesday, November 5, 1980.

The fact that the respondent added in his averment under paragraph 8 of his statement of defence, that only part of Effanga Offiong Family land trespassed upon by Etim Edet was in dispute did not derogate from the facts admitted as stated above. Where facts in issue are admitted they require no further proof. By virtue of section 75 of the Evidence Act, no fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which before the hearing, they agree to admit by writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. See Nwarata V. Egbuka (2005) 10 NWLR (Pt. 933) 241; Olugbode V. Sangodeyi (1996) 4 NWLR (Pt. 444) 500; Owosho V. Dada (1984) 7 SC 149 and Amadi V. Acho (2005) 12 NWLR (Pt. 939) 386 at 402 The fact highlighted and elucidated above represents the agreed facts in this case on appeal.

However, before a court can grant a declaratory relief sought by a plaintiff (now appellant), he must plead and lead evidence to entitle him to the declaration sought. An admission by the defendant will no way relieve the plaintiff from the onus placed on him of proving his claim. He cannot rely on perceived admission by the defendant. Courts do not make declarations of right either on admissions or default in defence. In a declaratory relief the court must satisfy itself, by evidence, not by admission in the defendant’s pleading, that the plaintiff has proved his claim. See Nkwocha & Ors. V. Ofurum & Ors. (2002) 5 NWLR (Pt. 761) 506 at 511 and Bello V. Eweka (1981) 1 SC 101.

Quite apart from the above, the appellant and the respondent are from the same Effanga Offiong Family. The appellant is also from Efut maternally. They are therefore bound by the Exhibits 1 and 2 since it was their family that was involved in the case. In fact, the respondent testified that he was a party to the suit. See page 94 lines 5 – 6 of the record. They therefore cannot deny Exhibits 1 and 2. The appellant’s Exhibit 3 clearly shows that the land in dispute is outside Effanga Offiong Family land. Having carefully examined Exhibit 4, it is clear that the land in dispute is outside Effanga Offiong Family land. Exhibits 1, 2, 3 and 4 tendered by the appellant clearly established that the land given to the appellant by his grandmother is outside the Effanga Offiong Family Land.

Although, the appellant had the onus of proving his case by relying on the strength of his own case and not the weakness of the defence, this is subject to the qualification that the appellant can in doing so, take advantage of such aspects and facts in the defence which support the appellant’s case. See Kodilinye V. Odu (supra); Akinola V. Oluwo (1962) 1 All NLR 224 and Onwugbufor & Ors. V. Okoye & Ors. (1996) 1 MAG page 1 at 14. Indeed in the instant case on appeal there is such evidence which support the case of the appellant. The respondent at page 98 lines 6 – 8 stated under cross-examination in respect of the land in dispute stated that:

“I do not know if it was not part of the claim in C/31/69 as shown in the survey plan thereto.”

At page 98 lines 22 – 24, the respondent still under cross-examination stated that:

“I could not be surprised that the land in dispute does not lie within the land in the 1969 case.”

Which means that the land is outside Effanga Offiong Family land?

Also DW3 (the respondent’s Surveyor) at page 102 lines 20 – 22 stated thus:

“Brown Colour shows Land-in-dispute in Suit C/31/69. The land verged brown excludes the land now in dispute 23 verged red.”

DW3 at page 105 line 31 and page 106 lines 1 – 14, testified under cross-examination thus:

“Plaintiff and defendant are from Effanga Offiong Family. Left hand side of Exhibit 1, Exhibits 3 and 8 correspond. Exhibit 1 is similar. Land in Exhibit 1 is same as land on Exhibit 8 with inscription land of Abasi Obori not in dispute, by Supreme Court Judgment property of Effanga Offiong Family… Green verged in Exhibit 3 is same as Brown verge in Exhibit 8…

In Exhibit 8 verged Brown is land in dispute in C/31/69.”

The evidence of DW3 was made in reference to Exhibit 8, which is a plan tendered by the respondent. The land verged Brown in Exhibit 8 is to the East of the land in dispute. The two pieces of land are co-terminus.

Furthermore, DW4 at page 108 lines 15 – 16 testified as follows:

“…Effanga Offiong has boundary with Efut combined Council and Duke Town families…”

From the available evidence the appellant has satisfactorily proved his root of title. He also established the identity of the land in dispute. The onus of showing that the land in dispute lies outside Effanga Offiong’s land was discharged by the appellant when he testified as PW1 and tendered Exhibits 1, 2, 3 and 4. His evidence was supported by the unchallenged evidence of PW3. From the evidence of PWs 1, 2, 3 and Exhibits 1, 2, 3 and 4, it is abundantly clear that the appellant has proved his root of title and established the identity of land. The appellant has also proved that the land in dispute lies outside Effanga Offiong’s Family land. This is particularly so in view of the evidence of DW3 which supported the claim of the appellant and against the interest of the respondent.

In Onyenge V. Ebere (2004) 13 NWLR (Pt. 889) 20, it was held at page 39 of the record that:

“An admission by a party against his interest is best evidence in favour of his adversary in a suit…”

From the foregoing the appellant has successfully discharged the onus of proof required by law. I resolved Issue No. 1 in favour of the appellant.

I now come to Issue NO.2. The issue here is whether the burden of proof that the land in dispute is part of the Effanga Offiong’s Family land or not.

The burden of proof in civil cases is on the party who alleges the affirmative and that party could be the plaintiff or the defendant depending on the state of the pleadings. By section 135 of the Evidence Act, 1999, the burden of proof in a suit or proceeding lies in that person who would fail if no evidence at all was given on either side. While the first burden is on the party who alleges the affirmative in the pleadings, the second burden, that is, the evidential burden lies on the adverse party to prove the negative. See Atana V. Amu (1974) 10 SC 237; Fashanu V. Adekoya (1974) 6 SC; Onyenge V. Ebere (supra).

The legal burden of establishing his root of title is on the appellant who must do so on the strength of his case without relying on the weakness of the defence, but the evidential burden of proving a particular fact tilts between the parties according to their averments in the pleading.

The learned trial Judge erred in law when he held at page 158, lines 1 – 4 that:

“It was the plaintiff who asserted that the land in dispute was outside Effanga Offiong land in Exhibit 1. The burden was on the plaintiff throughout and it did not shift.”

In civil cases, the ultimate burden of establishing a case is as disclosed on the pleadings. See Onobruchere & Anor. V. Esegine & Anor. (1986) 1 NSCC 343 and N. B. N. Ltd. V. U. C. Holdings Ltd. (2004) 13 NWLR (Pt. 891) 436. Any error as to onus of proof could affect the judgment in view of the evidence. It is a serious matter which can affect the credibility of witnesses and it can also lead to a grave miscarriage of justice. See Osafile V. Odi (1999) 5 SCNJ 79 and Bello V. Eweka (supra).

Contrary to the view of the learned trial Chief Judge, the onus of proof in civil cases, particularly in land matters, is not static. It is like a ping-pong ball, moving from one party to the other. See Sanusi V. Amoyegun (supra). In Nwosu V. Uche (2005) 17 NWLR (Pt. 955) 574, it was held that onus of proof in civil cases is not static; it lies on the party who would fail if no evidence is led.

The burden of proof in civil cases has two distinct meanings; viz:

(a) the first is the burden of proof as a matter of law and the pleadings usually referred to as legal burden or the burden of establishing a case;

(b) the second is the burden of proof in the sense of adducing evidence usually described as the evidential burden.

While the legal burden of proof is always stable or static the burden of proof in the second sense, i.e. evidential burden of proof may oscillate constantly as one scale of evidence or the other preponderates.

The appellant having proved his claim, the evidential burden shifted to the respondent to prove his claim, particularly having regard to his averments in paragraphs 7 & 8 of the statement of defence.

The respondent testified that the land in dispute was leased to him through a memorandum of agreement, to wit; Exhibit 5. He testified as DW1 and called 3 other witnesses namely, DW2, DW3 and DW4.

Respondent’s (DW1), evidence is at pages 92 to 98 of the record. He testified that Effanga Offiong Family gave him the land in dispute on a lease by a memorandum of agreement, which is Exhibit 5. He however did not testify as to how the Effanga Offiong Family came to be in possession of the land. He merely said that the land belonged to the Effanga Offiong family.

DW2 did not say anything about the land in dispute.

DW3, the respondent’s surveyor testified and tendered Exhibit 8. He testified that Exhibits 1, 3 and 8 are similar and that the Brown verge in Exhibit 1 is the Green verged in Exhibit 3. He also testified that the left hand side of Exhibit 1, Exhibit 3 and Exhibit 8 correspond. He testified further that the land in Exhibit 1 is the same as land in Exhibit 8 with the inscription “Land of Abasi Obori not in dispute”. I have already stated in this judgment that the evidence of DW3 essentially supported the claim of the appellant that the land in dispute is outside the Effanga Offiong Family land. DW4 testified in respect of Exhibit 8 and he tendered Exhibits 9 & 10.

He testified inter alia that Exh. 8 is part of Exh. 1.

The main evidence which the respondent relied on in proof of his title is Exhibit 5. From the averments in paragraph 7(a) and (b) of the respondent’s statement of defence, it is clear that the respondent came into possession of the land through Exhibit 5, the Memorandum of Agreement dated 20/1/71. Therefore, Exh. 5 qualifies as an instrument under section 15 of the Land Instruments Registration Law, Cross River State which should be registered before its acceptance as proving title of the respondent. Whether it was objected to or not the law is that it cannot be admitted and if admitted should be expunged from the records. See Oseni V. Dawodu (1994) 4 SCNJ (Pt. 2) 197 and Anyabunsi V. Ugwunze (1995) 7 SCNJ 551. The contention of the respondent that Exh. 5 is not the means by which the land was conveyed to the respondent is untenable in the face of the averments in paragraph 7(a) and (b) of the statement of defence reproduced earlier in this judgment. At page 12 paragraph 2, lines 5 – 6 of the respondent’s brief, learned counsel for the respondent stated that the respondent was put in possession of the land in dispute by Exhibit 5.

Another look at Exhibit 5 reveal that it was signed on the 20th January, 1976, but the plan attached to it was drawn on 25/1/78, 2 years after the memorandum of agreement was made. See paragraph 7(a) & (b) of the statement of defence at page 19 of the redord. The respondent had a duty to prove that Effanga Offiong’s land extended beyond the land so marked in Exh. ‘1’ in Red. See paragraph 10 of the respondent’s statement of defence where the respondent admitted that the land claimed by the appellant is verged RED in Exh. 3, appellant’s plan and on Exh. 8 (respondent’s plan).

It is also observable that all through the statement of defence the respondent did not plead the root of title of ownership of the land and he did not lead any evidence to establish same. Apart from Exh. 5, the memorandum of agreement concerning the lease from Effanga Offiong to the respondent, there is no other document establishing the root of title of the respondent or establishing his claim to the land. The respondent also testified to that effect in his evidence before the court. The law expects the respondent, where the title of his grantor is disputed to plead and prove the origin or root of the grantor. Failure to do so is fatal to his claim to ownership of the land. See Uche V. Eke (1998) 7 SCNJ 1 and Olatunji V. Adisa (1995) 2 SCNJ 91. Regard being had to the facts and circumstances the grantor should have been joined as a party in defence of the title.

It is my finding that the respondent at the court below did not discharge the burden of proving that the land in dispute is within the Effanga Offiong’s Family land. I, therefore, resolve Issue NO.2 in favour of the appellant.

In the final analysis, I find merit in this appeal and I allow it. The respondent filed a cross-appellant’s brief dated 5/10/06 and filed on 18/10/06. He was granted leave to file same out of time on 09/11/06 by this court. The cross-appellant’s brief was eventually filed on 15/1/97. The appellant/cross-respondent’s brief was filed on 7/3/07. On being served with the cross-respondent brief, the cross-appellant filed a cross-appellant reply brief on 22/3/07.

After carefully perusing the cross-appellant’s brief it is my view that it is merely a recapitulation of the respondent’s brief in the main appeal with minor variation in their details. For instance, the 3 issues formulated by the cross-appellant in his respondent’s brief of argument in the main appeal, are the same as the ones in the cross-appeal. I have already set out the issues for determination in the main appeal; I shall for the purpose of clarity set out the issues for determination:

“(1) What need be established in action for declaration of title to land when the boundaries are in dispute.

(2) What are the general principles on which the Courts act in order to grant decree of declaration.

(3) Whether the finding of fact by the trial Judge was justified.”

A cross-appeal is not intended to be used for duplication or repetition of the arguments in the main appeal. The purpose of a cross-appeal is to correct an error standing in the way of a respondent in the main appeal. A cross-appeal arises when a respondent disagrees with the decision of the court below. See Anzaku V. Gov., Nasarawa State (2005) 5 NWLR (Pt. 919) 507; Eliochin (Nig.) Ltd. V. Mbadiwe (1986) 1 NWLR (Pt. 14) 47. All the points raised in the cross-appeal have been sufficiently dealt with in the main appeal.

Where the findings of an appellate court in the main appeal have dealt with all the issues raised in a cross-appeal, the later becomes academic.

In the instant case on appeal, the issues raised in the respondent’s cross-appeal were dealt with in the course of resolving the main appeal. In the circumstance, it is academic therefore to consider the cross-appeal. See Umana v. Attah (2004) 7 NWLR (Pt. 871) 63 at 105. I, therefore, dismiss the cross-appeal.

The main appeal succeeds, and it is hereby allowed.

Accordingly, the judgment of the learned trial Chief Judge delivered in Suit No. C/211/82 on 6/3/2000 is hereby set aside. The judgment is entered for the appellant as per his claims. Costs in the sum of N10, 000.00 in favour of the appellant.

Appeal allowed.

Cross-appeal dismissed.

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Other Citations: (2008)LCN/2769(CA)