ARCHIBONG EDET ABIANA & ORS V. CHIEF OKU OKON E. ANTIGHA & ORS
(2010)LCN/3879(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of July, 2010
CA/C/116/2009
RATIO
LAND LAW: TITLE TO LAND; ELEMENTS TO BE FULFILLED IN A CLAIM FOR A DECLARATION OF TITLE TO LAND
In NRUAMA VS. EBUZOEME (supra) at 740 this court stated as follows:-
“…to succeed in a claim for a declaration of title to land the court must be satisfied as to:- (a) the precise nature of the title claimed, that is to say whether it is title by virtue of original ownership, or customary grant or conveyance, or sale by customary law, or sale by customary law, or long possession, or otherwise, (b) evidence establishing title of the nature claimed must be credible, convincing and unequivocal”. PER JAFAARU MIKA’ILU. JCA
LAND LAW: TITLE TO LAND; WHAT IS THE DUTY OF A CLAIMANT IN LAND TRESPASS
the law is well settled that in order to make defendants’ possession an act of trespass the plaintiff must prove a better title than the defendant to the land in dispute. On this a reliance has been made on OGUNFAOLU VS. ADEGBITE (1986) 5 NWLR (pt 43) 549; 556- 558; PALMER VS. DADA (1986) 5 NWLR (pt 43) 541; 545 and POLO VS. OJOR (2003) FWLR (pt 137) 1085; 1094. PER JAFAARU MIKA’ILU. JCA
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
Between
ARCHIBONG EDET ABIANA & ORS Appellant(s)
AND
CHIEF OKU OKON E. ANTIGHA & ORS Respondent(s)
JAFAARU MIKA’ILU. JCA (Delivering the Leading Judgment): This is an appeal against the judgment of the Cross River State High Court delivered on 2nd February, 2009 at the Akpabuyo Division. By the said judgment the trial Judge entered judgment for the plaintiffs/Respondents and awarded them a declaration of title to land, damages for trespass and an order of perpetual injunction against the defendants/appellants.
Thus the respondents, as plaintiffs, sued the appellants at the High Court for (i) declaration that the respondents are entitled to a right of occupancy of a land called Esuk Okon, N7.1 million in special and general damages for trespass, and (iii) an order of perpetual injunction against the appellants. The pleadings on which this case was determined are the amended statement of claim filed on 18/12/06, the statement of Defence filed on 1/7/02 and the amended Reply filed on 25/4/05.
The land in dispute is an entire village called Esuk Okon in Akpabuyo LGA of Cross River State. The Respondents’ case is that the village was founded and named after their ancestor Okon Effiong Antigha and that the appellants were mere settlers in that village where the 3rd respondent is the village head. The appellants’ case, on the other hand, is that the village was founded and named after Okon Ekpiri Iwong and that the 1st appellant is the head of that village.
At the trial, it is alleged, the respondents called three witnesses and tendered nine exhibits, while the defendants called one witness and tendered one exhibit. The trial Judge closed the defence case, dispensed with final addresses by counsel, and adjourned the matter for judgment, which was delivered on 2nd February, 2009 in favour of the respondents. Aggrieved by the said judgment the appellants filed this appeal on five grounds.
However ground 4 has been abandoned. From the remaining grounds of appeal the sole issue for determination framed by the appellants is whether the traditional history evidence adduced by the plaintiffs/respondents in this case was credible and sufficient in law to establish the plaintiffs title to the land in dispute.
On the other hand, in the respondent’s brief of argument two issues have been formulated for determination. They read:-
(a) Was the trial Court right in its decision having regard to the pleadings and evidence adduced in the matter?
(b) Is the judgment against the weight of evidence?
The above issues have been argued together by the respondents. It is however clear that the sole issue formulated in the appellant’s brief will be sufficient to determine this appeal. The issue, as shown earlier, is whether the traditional history evidence adduced by the plaintiffs/respondent in this case was credible and sufficient in law to establish the plaintiffs’ title to the land in dispute.
It is the avernment of the learned counsel for the appellants that in this case the burden of proof was indisputably on the respondents as plaintiffs to establish their title to the Esuk Okon land in dispute by any of the five ways known to law. That in this regard the respondents chose in their pleadings and evidence to establish their title by traditional history evidence. He has argued that it is settled law that a party relying on traditional evidence must in order to succeed adduce consistent evidence showing (i) the person that founded the land, (ii) how the land was founded and (iii) the names of successive trustees on whom the land devolved from the founder down to the claimants. Reliance has been made on NRUAMA VS. EBUZOEME 2007 ALL FWLR (pt 347) 723; 738-739. That on these essential requirements the respondents pleaded in paragraph 3 of their amended statement of claim that their grand father, Okong Effiong Antigha, founded the land by deforestation. That the respondents’ PW 1 testified as follows:-
“Am the grandson of Okon Effiong Antigha…. Our grandfather deforested the land of Esuk Okon and lived there with his children” (page 45 of the record)
That, however, the respondents’ P.W 3 gave a completely different version of how the land was founded in the following words:
“The people of Ifiang gave him (ie Okon Effiong Antigha) the land. Obong Nyok Effiong Nsung gave him the land” (Page 78 of the Record)
The P.W 3 elaborated further on that fact as follows:-
“I said the last time that Chief Nyok Effiok gave the land to plaintiffs as the head of Ifiang community. He was acting for the community”. (Page 78 of the Record)
That under cross-examination the witness further explained “Esuk Okon is owned by Ifiang, Ifiang gave (the land) to the plaintiff as the son of the soil” (Page 80 of the Records) The appellant’s counsel has averned that in effect three respondent’s witnesses gave conflicting traditional history evidence on how the Esuk Okon land in dispute was founded while P.W.1 asserted that Okon Effiong Antigha was the original owner who founded the land by deforestation and settlement, P.W 3 asserted that the land was originally owned by Ifiang people from whom Okon Effiong Antigha got the land as a gift (i.e customary grant).
In NRUAMA VS. EBUZOEME (supra) at 740 this court stated as follows:-
“…to succeed in a claim for a declaration of title to land the court must be satisfied as to:- (a) the precise nature of the title claimed, that is to say whether it is title by virtue of original ownership, or customary grant or conveyance, or sale by customary law, or sale by customary law, or long possession, or otherwise, (b) evidence establishing title of the nature claimed must be credible, convincing and unequivocal”.
The appellant counsel has averred that in this case the traditional history evidence of the respondents’ witnesses on the respondents’ root of title is contradictory, and also at variance with their pleading. He has maintained that in such events the law is well settled that the court must find such conflicting traditional history evidence unbelievable and consequently dismiss the plaintiff’s claims. Thus in ADELEKE VS. ASANI (2002) FWLR (pt 106) 982; 999 the Supreme Court held as follows:-
“A party who adduces conflicting histories of ownership in support of his claim, has failed to make out the case he sets out to make, his claim must be dismissed. In other words, when there are internal conflicts in the evidence of traditional history and also the evidend led conflicted with the history pleaded, the traditional history must collapse” (Holding 3).
Appellants’ counsel has also referated to AKINRINLOLA VS. AKINTEWE 2003 FWLR (pt 60) 1602; 1622, MOGAJI VS. CADBURY NIG LTD (1985) 2 NWLR (pt 7) 393; 430. He has reiterated that in this case, the learned trial Judge, instead of dismissing the respondents’ claim decided to apply the principle in KOJO 11 VS. BONSIE by testing the respondents’ conflicting traditional history evidence against recent events. That on that test the trial Judge held that the respondents’ traditional history was credible and true because –
“…Some of the plaintiffs are still living on the said land and health centre had been built through proceeds from palm fruits harvested from the land’ (page 97 of the Record).”
He has also submitted that the learned trial Judge erred in law when she applied the principle in KOJO 11 VS. BONSIC (1957) 1 WLR 1223 in this case because that rule does not apply to their conflicts in the evidence of traditional history given by a plaintiff’s witnesses. That the rule applies where there is consistent evidence of traditional history given by the plaintiff’s witnesses which conflicts with similarly consistent evidence by defence witnesses. Thus in SANUSI VS. ADEBIYI (1997) 12 SCNJ 25;40 the Supreme Court held as follows:
“…I think it ought to be stressed that two plausible but conflicting evidence of tradition from the parties must exist side by side before the evaluation of such conflicting evidence by events of the presents (sic) facts as laid down in KOJO 11 VS. BONSIE. The principle does not seem to me to apply where as in the present case one of the parties (sic) traditional history is intricically false and unacceptable.”
He has also referred to MOGAJI VS. CADBURY NIGERIA LIMITED (supra) at 430 where the Supreme Court held as follows:
“Rule of Law that where a party adduces two conflicting histories of their ownership in support of his claim he has failed to make out the case he set out to make and his claim must be dismissed.
It is only where the conflict arises between the traditional history given by one side and the traditional history given by the other side that the In KOJO 11 V BONIE is resorted to in the ascertainment of the true history.”
The Learned Counsel for the Appellant has further submitted that the trial Court was also in error when it found support for the Respondents’ traditional history evidence in a finding that the Respondents …Still living on the Land in dispute. That Infact … the 2nd Respondent who testified as PW1 said that:
“I do not live on the Land in question. We used to have a family house but it was set ablaze by the 3rd Plaintiff and the occupants ran away…”
“There is a care taker in the village by name Ene Antigha Tom. He is the 3rd Plaintiff in this suit…”
“The 3rd Plaintiff is the village head of Esuk Okon. He was elected village head a long time ago…”
“The care taker used to lease out the Land for farming and other uses. I have never entered into an agreement with anyone concerning Land since I don’t live on the Land. The 3rd Plaintiff had shown me a receipt and an agreement concerning part of the Land…”
“My father lived in Ikot Ene and died in Ikot Ene…”
(pages 48- 49 of the Record)
The appellants’ counsel has maintained that from the foregoing it is obvious that the respondents are not living on the land in dispute and their father did not live there. That the respondents do not even have a family house on the land in dispute, and their supurious claim that their family house was set a blaze was not pleaded and went to no issue. That the claim that the 3rd respondent was the caretaker and village head of the Esuk Okon land in dispute and managed the land on behalf of the respondents is equally spuvious because the 3rd respondent did not testify to that fact himself. This court, in CHUKWU VS. NNBI (1990) 6 NWLR (pt 156) 363; 379 held as follows:-
“The features and user of the land were put in issue by the defendants in this case. The plaintiffs therefore had the burden of establishing by satisfactory evidenced which of their people farmed on the land in dispute. This should be the evidence of the said farmers themselves or perhaps those who worked for them on their farms. (Since) the respondents completely failed to do this there was therefore no iota of evidence of acts of ownership and/or possession of the land in dispute by the plaintiff.”
The appellant counsel has added that even the lease agreements which the respondents said the 3rd respondent made as the caretaker of the land should have been tendered by the 3rd respondent who made those agreements but that was not done in this case.
The appellants’ counsel has further argued that the respondents’ claim of possession of Esuk Okon land through the 3rd respondent as village head/caretaker was however debunked by the respondents’ P.W 3 who stated as follows:-
“…the defendant is now the village head of Enuk Okon (page 74 of the Record)”.
That the admission by P.W.3 corroborates the evidence of D.W.1 which is as follows:-
“I know the 3rd plaintiff. He is dead, by name Ene Tom, not the village head Esuk Okon. I am the village head. I have a certificate.
The counsel added that the 1 appellant’s certificate of recognition from the government as the village head as tendered after initially objected and admitted in evidence (see page 85 f the Records). That the respondents in effect are not resident in the Esuk Okon land in dispute and have no caretaker there. The respondents even admitted that the appellants are in control of the land. According to their PW.2.
“Obong Okon E. Antigha used to lease out the land… Thereafter his children took over the land until the time the defendants burnt their family compound… Since then the defendants took over the land… A certain Madam Bassey Effiong Utong, a trader at Esuk Okon… Brought the defendants to Esuk Okon as children”. (Pages 51-52 of the Records).
The foregoing, according to appellants counsel, is a clear admission by the respondents that the appellants are old residents in the Esuk Okon land in dispute and are in the land. He has added that their claim that the control began from when the respondent’s family house was burnt is spurious for several reasons. Firstly, P.W.1 as quoted earlier said the family house was burnt by the 3rd respondents, but P.W 2 said the house was burnt by the appellants, and this calls to question whether the respondents have a family house that was burnt at all on the land in dispute. That if the appellants had burnt the respondents’ family house to take control of the land such a material fact would have been pleaded as the cause of action in this suit. But in this case no such fact was pleaded and the loss of a family house was not even among the damages for trespass itemized in the respondents’ statement of claim.
The appellants counsel has further averred that in the circumstances the respondents’ categorization of the appellants’ possession of the Esuk Okon land in dispute as an act of trespass has not been substantiated. That, however, the law is well settled that in order to make defendants’ possession an act of trespass the plaintiff must prove a better title than the defendant to the land in dispute. On this a reliance has been made on OGUNFAOLU VS. ADEGBITE (1986) 5 NWLR (pt 43) 549; 556- 558; PALMER VS. DADA (1986) 5 NWLR (pt 43) 541; 545 and POLO VS. OJOR (2003) FWLR (pt 137) 1085; 1094. That in this case the respondents’ attempt to prove a better title to the land in dispute failed on the contradictory traditional history evidence adduced. That in the circumstances the trial court should have dismissed the respondents’ claims for trespass along with their claim for declaration of title because the remedy for trespass is available only to a party in possession or one entitled to possession. That in this case, therefore, where the respondents have admitted that they are not in possession of the land, and have failed to prove better title, their claims should be dismissed.
In conclusion, the learned counsel for the appellants urges this court to allow this appeal mainly because the glaring conflicts in the traditional history evidence given by the respondents’ witnesses is fatal to their claim for a declaration of title in the suit. He has argued that those conflicts cannot be cured, as held by the trial Judge, by recent acts of possession, assuming there was any. He has also submitted further that the respondents claim for trespass should also fail because they have not proved a better title than the appellants to the Esuk Okon village in dispute.
Having carefully perused the record of proceedings of the trial court and having considered the arguments of both counsel for the appellants and counsel for the respondents I am satisfied as follows:-
(a) This appeal being a challenge to the finding of the trial court based on the evidence believed by the Honourable trial Judge is misconceived. That the trial court rightly discountenanced evidence of the unpleaded issue.
(b) The weight of evidence at the trial preponderates and tilts in favour of the respondents who out of abundance of care relied on two ways of proof of title, led evidence accordingly and were believed by the trial court.
(c) The rather pertinent question of whether the trial court was right in discountenancing the conflicting testimony of P.W 3 as to finding, as it did, is not before this court in this appeal.
(d) The findings of the trial court are supported by evidence believed as credible.
(e) The Respondents proved their case by both two methods title is provable and were therefore entitled to judgment as pronounced.
In the final conclusion I find that this appeal lacks merit and I accordingly dismiss it.
Parties to bear their costs.
NWALI SYLVESTER NGWUTA (JCA): I read in draft the lead judgment delivered by my learned brother Mikailu, JCA. I agree with his reasoning and conclusion and I also dismiss the appeal for lack of merit.
Parties to bear their costs.
K.B. AKAAHS JCA: I had a preview of the judgment of my learned brother Mikailu JCA. The issue in this appeal has turned on the credibility of evidence adduced during the trial. It is only the learned trial Judge that is eminently qualified to believe the evidence of a witness or witnesses and the appellate court will be very slow to interfere unless the evidence adduced is palpably unbelievable. In the circumstances I dismiss the appeal as being unmeritorious.
Appearances
ESSIEN H. ANDREW ESQFor Appellant
AND
ETUBOM E.E. O. ARCHIBONG ESQ.For Respondent
