Effiong Odiong Mkpinang & Ors. V. Chief Effion Ndem & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C

This appeal arose from the judgment of the Court of Appeal, Calabar Division which reversed the decision of Nkop CJ sitting at Akwa Ibom High Court Uyo and ordered a re-trial on the ground of the non-evaluation of the evidence led by the respondents on their pleaded facts of ownership and possession. The plaintiffs/respondents had sued the appellants in a representative capacity in suit No.HU/4/85 seeking a declaration that they are entitled to the Customary/Statutory Right of Occupancy over the disputed land called ‘Esuk Inwang Okon Eyo’; N1,000,000.00 (One Million Naira) being general damages for trespass and a perpetual injunction restraining the defendants, their agents and assigns from ever committing further acts of trespass over the said land,

The claim was denied. Pleadings were filed and exchanged and the parties called witnesses. The learned trial Chief Judge of Akwa Ibom State before dismissing the plaintiffs’ case found inconsistencies in the various versions of the traditional history given by the plaintiffs’ witnesses when he stated in the judgment:

“I have carefully considered the two sets of traditional evidence tendered by both parties to this suit. I must confess that it is a bit difficult to test the credibility of the traditional history tendered by the plaintiffs. In the first place, there are some inconsistencies in their various versions”

(See page 210 lines 10- 15 of the printed record of appeal).

The learned trial Chief Judge after pointing out what he considered to be the deficiencies in the plaintiffs’ evidence accepted the defendants’ evidence and held that all recent acts and facts disclosed in evidence tended to support the traditional history tendered by the defendants. He proceeded to dismiss the plaintiffs’ case with N1,500.00 (One Thousand, Five Hundred Naira) costs to the defendants.

The plaintiffs were dissatisfied with the decision of the learned trial Chief Judge and appealed against it to the Court of Appeal which allowed the appeal and ordered a re-trial. It is against the order of re-trial that defendants/respondents now appealed to the Supreme Court. The parties herein shall be described as defendants/appellants and plaintiffs/respondents respectively.

The appellants’ Notice of appeal filed on 2/8/2000 contained four grounds of appeal from which a lone issue was distilled from grounds 1 and 2 while grounds 3 and 4 were abandoned and struck out.

The issue formulated by the appellants is:

“Whether the Court of Appeal was right in holding that the trial court, in the circumstances of this case, ought to have evaluated the Respondents’ acts of ownership and possession given its rejection of the Respondents’ inconsistent traditional evidence”.

The respondents on their part raised two issues for determination as follows:

“1. Was the lower court right in holding that with numerous acts of ownership and possession as copiously pleaded and evidence led in support, the trial court failed to evaluate the traditional evidence of ownership as presented by the Respondents

2. Was the lower court right in ordering a re-trial of the case owing to lack of examination and evaluation of the credibility of the witnesses and their evidence by the trial court”

It was argued by the Learned Senior Counsel for the appellants that the finding by the trial court about the inconsistency in the traditional history given by the respondents was not set aside by the lower court herein. Learned Counsel then analysed the reasoning of the lower Court on the evidence of the plaintiffs which the trial court did not evaluate and which led the lower Court to order the re-trial and submitted that the lower court glossed over very significant issues embedded in the parties’ pleadings which would have made it to arrive at a different conclusion.

The issues he enumerated are:-

1. The respondents’ pleaded root of title.
2. The inconclusive traditional evidence given by the respondents which was rejected because of its being inconsistent.
3. The trial court was not bound to consider acts of ownership and possession after rejecting the root of title founded on traditional history.

It is argued that the case of Akunyili v. Ejidike (1996) 5 NWLR (Part 449) 38 was wrongly applied because the respondents did not rely on acts of ownership and exclusive possession for their claim of title to the disputed land but rather as acts to show utilisation of the fact of first settlement. In this respect the case of Nkado & Others vs Obiano & Others (1997) 5 NWLR (Part 503) 31 was more appropriate in deciding the case. It is the contention of counsel that the respondents’ pleaded root of title and sufficiency of its proof before the trial court are of paramount importance and the backbone of this appeal.

The respondents in their brief agreed that the statement of claim and the evidence in support showed that the plaintiffs inherited the land in dispute from their ancestors who deforested the land when it was a virgin forest. Learned counsel for the respondents argued that the trial court was bound by law to appraise the evidence, examine the demeanour of the witnesses to check their credibility and then ascribe value to the evidence but it failed to carry out this duty and this led the lower court to allow the appeal and remit the case back for retrial. Learned counsel contended that the trial court did not only fail in its duty but found the duty difficult to handle and so the final order which the Court of Appeal had to make is a direct consequence of its holding that the trial court had failed to evaluate material evidence of numerous acts of ownership and possession allegedly exercised over the land by the plaintiffs/respondents and so the conduct of the trial court had occasioned a miscarriage of justice.

Is the contention of learned counsel for the appellants right when he argued that the case of Akunyili v. Ejidike supra was wrongly applied by the lower court and that instead it was the case of Nkado & Others vs Obiano & Others supra that was more appropriate In the appellants’ brief Learned Senior Counsel sought to draw a distinction between the evidence of traditional history which is inconclusive and evidence which is found to be inconsistent and therefore rejected

He submitted that inconclusiveness of traditional evidence in a claim for declaration of title to a disputed land does not arise where one such evidence for either of the parties is rejected on the basis of unreliability, inconsistency or for whatever reason in law. The legal position as enunciated in Kojo vs Bonsie (1957) 1 WLR 1223 and applied in Igbojimadu vs Ibeabuchi & Others (1998) 1 NWLR (Part 533) 179 is that when the traditional history put forward by a plaintiff is found to be unreliable and therefore rejects it he has failed to prove title based on it and the claim to that title ought to be dismissed. He said that in the instant case under appeal, there is nowhere in the entire judgment of the trial court where the learned trial Judge expressed the view, even remotely, that the traditional evidence or histories of the parties before him were inconclusive as stated by the learned Justice of the Court of Appeal.

With due respect, I do not think the above position as canvassed by learned counsel for the appellants does represent the true state of the law. It is trite that it is the pleadings and evidence adduced by a plaintiff for declaration of title that determines whether he has proved his case or not. In other words, proof of a claim for a declaration of title by means of traditional evidence is not mutually exclusive with other means of proving the claim. See Kojo vs Bonsie supra; Motunwase vs Sorungbe (1998) 4 NWLR (Part 92) 90. Thus a plaintiff may adopt one or more of the ways of proving ownership for example, traditional evidence or by means of evidence of acts of ownership or possession. It is only where a plaintiff fails to prove his case by means of traditional evidence and also fails to establish it by means of evidence of acts of ownership and possession, when these were the means pleaded and relied upon that the plaintiff’s case should be dismissed. It is also immaterial whether the learned trial Judge makes a finding that the traditional history of one or both parties is inconclusive. The lower court in its consideration of the complaint of non evaluation or improper evaluation of the evidence observed that the appellants relied in proof of their case on traditional evidence, acts of ownership and possession rightly held by relying on Akunyili vs Ejidike supra that if evidence of traditional history is not conclusive, then evidence, if any, on record of act of ownership or possession should be considered. Having examined the pleadings and evidence of some of the witnesses called by the respondents as plaintiffs, it became obvious that their evidence ought to have been evaluated. Since the evidence turned on the credibility of the witnesses, the Court of Appeal had no option but order a re-trial. I find that the order for re-trial cannot be faulted. On the whole I find that the appeal is completely devoid of merit and it is accordingly dismissed. The order of re-trial made by the Court of Appeal is hereby affirmed. The matter is hereby remitted to the Chief Judge Akwa Ibom State High Court for hearing ‘de novo’ by another Judge. There shall be costs of N50,000.00 (Fifty Thousand Naira) in favour of the respondents in the Appeal.

SC.52/2006