GODWIN PETER ODUOK & ORS V. PAULINUS B. EKONG
(2011)LCN/4504(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of April, 2011
CA/C/106/2010
RATIO
FAMILY LAND/PROPERTY: ROLES OF THE FAMILY HEAD IN RESPECT OF THE FAMILY LAND AND WHETHER HE CAN DISPOSE THE FAMILY LAND WITHOUT THE CONSENT OF THE ELDERS OF THE FAMILY
…it must be made clear that whilst it is a family land all family members have equal right to it but in every case the family head has charge of the land and in loose term is sometimes called the owner. He is to some extent in the position of a trustee and as such holds the land for the use of the family. He has control of it and any family member who wants a piece of it to cultivate or to build a house goes to him for it. But the land so given still remains the property of the family. He cannot make any important disposition of the land without consulting the elders of the family and their consent must in all cases be given. PER JA’AFARU MIKA’ILU, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
GODWIN PETER ODUOK
CHIEF ODUOK PETER ODUOK
RAPHEAL PETER ODUOK
ODUOK SAMPSON ODUOK
OKON WILLIAM ODUOK
JOSEPH OKON ODUOK
ODUOK ROBERT ODUOK
EZEKIEL TOM EBITU Appellant(s)
AND
PAULINUS B. EKONG Respondent(s)
JA’AFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwo Ibom State Holden of Eket, delivered in suit No. HEK/72/98 on the 1st day of February, 2010 in favour of the respondent/plaintiff.
The plaintiff commenced this action in the High Court, Eket, Akwa Ibom State seeking as Per his Statement of claim filed on the 4th day of November, 1998 for the following:-
(a) A declaration that the plaintiff is entitled to statutory Right of Occupancy in respect of all that piece or parcel of land called “NDON ODUOK” being lying and situate at Ikot Ebok in Eket Local Government Area and more particularly described in survey Plan No 03.9 AK/08/0047 D thereon and verged Pink.
(b) A declaration that the alienation of the land in dispute by the 1st – 7th defendants to the 8th defendant are null and void and of no effect whatsoever.
(c) The sum of N1, 000,000.00 (One Million Naira) being damages for trespass.
(d) Perpetual injunction restraining the defendants and/or agents or otherwise from entering, occupying or using the said land in dispute.
On the 14th day of October, 2009, the trial court delivered its ruling. The Defendants/appellants aggrieved by the judgment of the trial court appealed to this court by filing Notice of Appeal containing 4 grounds of appeal on the 1st day of March, 2010.
Before this court briefs have been filed and exchanged. In the appellant’s brief of argument the issues formulated for determination of this appeal read as follows:
(1) Whether the learned trial Judge was right to hold that “Ndon Oduok Akpaduatang” was not family land but the property of the plaintiff / respondent.
(ii) Whether the land known as and called “Ndon Oduok Akpaduatang” had been shared to members of Oduok family.
(iii) Whether the letter of administration can confer title to the plaintiff /respondent where the root of title is defective.
On the other hand the issue formulated for determination in the respondent’s brief of argument is whether the learned trial Judge was not right in holding that the land in dispute is the land of the plaintiff. I will determine this appeal by considering the issues as formulated in the appellant’s brief of argument.
It is to be noted that the land in dispute as agreed by the parties is called “Ndon Oduok” or “Ndon Oduok Akpaduatang” situate along Inyang Etuk in Ikot Ebok in Eket Local Government Area. Both parties are in agreement as to the original settler or founder of the land in dispute. It is D.W1’s evidence that there is just one Ndon Oduok in the family.
The said area known as and called “Ndon Oduok Akpaduatang” has been distinctively marked on three different exhibits tendered and admitted in evidence by the trial Judge. These are:-
(i) The plaintiff’s/Respondent’s plan with survey plan number 0319/AK 108/00470 drawn on the 20th day of March 1998 by Surveyor O. U. Umana MNIS – EXHIBIT B
(ii) The defendant’s/appellant’s plan with survey plan number AK/FJ/002/99 (LD) drawn on the 26th day of January 1999 by F.J. Ukpong MNIS – EXHIBIT H
(iii) Survey plan number UW/37/86 (LD) EXHIBIT K. This was drawn by plaintiffs/Respondent’s father and used exhaustively in suit No HEK/14/85 being exhibit D at the trial court. The legends in exhibits H and K has cleared the doubt on the land described as “Ndon Oduok Akpaduatang”.
Thus the crux of the matter is whether this land is aforestated family land or the private property of the plaintiff’s/Respondent’s.
Here page 84 lines 25-35 of the records as follows:-
“The land in dispute is the family land of Oduok Akpaduotong. The land is a part of land known as Ndon Oduok… There is just one Oduok in the family.
Our grandfather Oduok Akpaduatang deforested and lived there right from the time Oduok Akpaduatang died this land had remained family land under the control of the family head right from the time of Sampson Oduok who was my father (5) B.A. Ekong – father of the plaintiff until now when the land is under my control”.
Also at page 7 of exhibit D lines 4 to 5 the PW 1 therein being the plaintiff’s/Respondent’s father stated in his evidence as follows…..
“When my father died, the land was taken over by my father by name Sampson Oduok. At the moment I am the last son of Oduok and head of the family too. I with the consent of the family am entitled to give that land…”
Also the plaintiffs/Respondent’s father at Page 8 lines 19-21 of exhibit D contained as follows:
“By our custom, the land could not be shared. It usually descended from one senior to the other”
Also at page 11 of exhibit D PW1, who was plaintiffs/Respondent’s father gave clear evidence as follows:-
“I know the boundaries of the land. I was born 1902 while my father died in 1921. My father was buried there on the land in dispute. The land was family land occupied by our various family members. So every piece of land surrounding the land in dispute is family land where my family people lived. Very few individuals who are not family members have land around the land in dispute. My family had up to 110 parcels of land in the area. Raphael Peter Oduok had no personal land in the area except the family land we inherited from our father. Okon William Oduok has no personal land given to him by his father. He is occupying the family land we inherited from our father. Oduok Street cuts Ndon Akpaduatang into two”.
Thus it must be made clear that whilst it is a family land all family members have equal right to it but in every case the family head has charge of the land and in loose term is sometimes called the owner. He is to some extent in the position of a trustee and as such holds the land for the use of the family. He has control of it and any family member who wants a piece of it to cultivate or to build a house goes to him for it. But the land so given still remains the property of the family. He cannot make any important disposition of the land without consulting the elders of the family and their consent must in all cases be given.
I have carefully perused the appellant’s brief of argument and the respondent’s brief of argument as well as the record of proceedings of the trial court. It is clear that (a) the land in dispute for all times remains the family property of the parties, (b) the land in dispute has not been shared and that the root of title of the plaintiff/respondent is defective and he can not rely on the letter of administration he did apply for.
In conclusion I find that the appeal has merit and I allow the same. The Judgment of the trial court is hereby set aside. I award no costs.
KUMAI BAYANG AKAAHS, J.C.A: I had the privilege of reading the lead judgment delivered by my learned brother Mikailu, JCA and wish to dissent.
The Plaintiff took out a Writ of Summons against the Defendants both jointly and severally and sought the following reliefs in paragraph 17 of the Statement of Claim:-
1. A DECLARATION that the plaintiff is entitled to Statutory Right of Occupancy in respect of all that piece or parcel of land called “NDON ODUOK” being lying and situate at Ikot Ebok in Eket Local Government Area and more particularly described in Survey Plan No. 03.9AK/08/0047D and thereon verged pink.
2. A DECLARATION that the alienation of the land in dispute by the 1st – 7th defendants to the 8th defendant are null and void and of no effect whatsoever.
3. THE SUM of N1, 000,000.00 (One Million Naira) being damages for trespass.
4. PERPETUAL INJUNCTION restraining the defendants and/or agents or otherwise however from entering, occupying or using the said land in dispute.
According to the Plaintiff his late father Chief Bassey Ekong inherited the land in dispute from his own father, Chief Oduok Akpaduatang who died in 1921. The said Chief Oduok Akpaduatang married three wives, the third being, Unwa who bore three sons, the third being Bassey Ekong Oduok, the plaintiff’s father. It was Chief Oduok Akpaduatang who deforested and cultivated several farmlands some of which he shared out to his wives according to the needs of each of them to cultivate and feed their children. According to Eket tradition and custom such grant of farmland to a wife for cultivation is known as “Mkpa Uba”. On the demise of the husband the male children of each of the wives would inherit “Mkpa Uba” farmland absolutely and it differs from other grants such as “Nno Nkama” (which is land temporarily held by another and commonly shared among the surviving males of the family upon fulfillment of certain conditions; then “Iko Ekput” (meaning family land) and “Ikot Ete” (meaning all the parcels of land which were cultivated personally by the founder of the family before his death). Chief Oduok Akpaduatang personally gave the land in dispute to his third wife, Unwa Udoidua Etenam. Since then the land remained in the possession of Unwa until her death sometime in 1924, and thereafter devolved on the plaintiff’s late father without any molestation or hindrance from any quarters. After Chief Oduok Akpaduatang’s death, Samson Oduok the most senior son (as he then was) became the Family Head until 1934 when he died and was succeeded by Robert Oduok who died in 1967. Chief Bassey Ekong, the plaintiff’s father Succeeded the said Robert Oduok until his death in 1994. In 1974, the plaintiff’s father as Family Head together with 7th defendant as representative of a faction of Nung Akpaduatang family instituted Suit No. 46/74 at the Eket District Court against Peter Oduok, father of 1st, 2nd and 3rd defendant to compel the said defendants to appear for the sharing of their grandfather’s land Again in 1985, the plaintiff’s father as Family Head together with the 2nd defendant and two others successfully defended the family land situate near the land in dispute against the 4th Defendant in suit No. HEK/14/85.
It was on 30th March, 1992 that the Plaintiff’s father caused the land to be surveyed without any interference from any of the Defendants leading to the production of Survey Plan No. ESA/AK/4201 of 30th March, 1992. On the death of his father on 28th August, 1994 he applied to the probate Registry and was issued with Letters of Administration to administer his estate.
The Defendants while admitting that the land in dispute is known as “NDON ODUOK went further to assert that it is part of a larger piece of land and that the plaintiff’s plan does not show exactly the area referred to as ” NDON ODUOK” and claimed that it is family land which is delineated in the Defendants’ Survey Plan No. AK/FJ/002/99 (LD) and verged green while the portion of the land in dispute is verged red. The Defendants admitted that the Plaintiff is the son of Bassey Anthony Ekong who was a one time Family Head of Nung Oduok Akpaduatang but was removed before he died when it was discovered that he was not an indigene of Nung Oduok Akpaduatang and he did not challenge his removal. They claimed that a declaration of title over the entire Ndon Oduok in the Defendants’ plan was awarded to the Nung Oduok Akpaduatang family by the High Court in Suit No. HEK/14/85 on 7th April, 1993. The Defendants denied that he Plaintiff’s father inherited shared or disputed land. By native law and custom of the Defendants, “NDON” land remains family property that is not to be inherited, shared or partitioned except by mutual agreement of all the principal members of the family. The mother of the Plaintiff’s father was not one of ODUOK Akpaduatang’s wives but a house help to his senior wife who became pregnant from an illicit affair she had with one Edward Attang and gave birth to Plaintiff’s father. The said Edward Attang was a personal friend of Chief Oduok Akpaduatang. After the death of Chief Oduok Akpaduatang the succeeding family heads held the land in trust for the whole family. Chief Anthony Bassey Ekong was one of them until he was removed as the Family Head in 1993. The defendants pleaded that the land was properly alienated to the 8th Defendant by the 1st Defendant who obtained the land as his share of family land from the Defendant’s family Nung Oduok Akpaduatang.
The Plaintiff filed a Reply to the Statement of Defence alleging that the letter removing his father as the Family Head was prepared in anticipation of the case and was never served on his father.
Having joined issues in the pleadings the case was set down for hearing. The Plaintiff testified before Enefiok Udo J. and tendered 7 Exhibits. He was cross-examined and thereafter closed his case on 13/7/2006 (See page 71 of the records). The Defendants commenced their defence on 8/11/2006 before it was adjourned to 8/12/2006 for continuation. On 15th February, 2007, the matter came before Ekerete A. Ebienyie J. who adjourned it to 27/3/2007 for hearing de novo (see page 73 of the records). On 15/7/2007 hearing stated afresh with the Plaintiff testifying as PW1. He tendered 7 Exhibits which were marked Exhibits “A”-“G”. He was cross-examined on his evidence before closing his case on 23/10/2007 (see page go of the records).
The Defendants opened their defence on 26/6/2008 with Raphael Peter Oduok, the 3rd Defendant testifying as DW1. He tendered three Exhibits marked Exhs. “H”, “J” and “K”. He was also cross-examined before closing the case for the Defence. Both counsel informed the court of their desire to file written address which was adopted on 25/6/2009. The suit was adjourned to 6/8/2009 for judgment. The Judgment was not read until 1/2/2010. The learned trial Judge entered judgment in favour of the Plaintiff. He declared that the plaintiff is entitled to the Statutory Right of occupancy in respect of the parcel of land called NDON ODUOK described and delineated and verged GREEN and RED on the Plaintiff’s Survey plan No. 03.9/AK/08/0047 LD of 20th March 1998 admitted as Exh. “B”.
The learned trial Judge further declared that the alienation of the land in dispute verged GREEN and RED in Exhibit ‘B’ by the 1st to 7th defendants to the 8th defendant is null and of no effect whatsoever and proceeded to grant an order of perpetual injunction restraining the defendants, their servants, agents or privies from further entering, occupying or using the said land as particularly delineated and verged GREEN and RED on Survey plan No. 03.9/AK/08/0047D dated 20th March, 1998.
2. He ordered the defendants to jointly and severally pay to the plaintiff general damages for trespass which was assessed at N250, 000.00 (Two Hundred and fifty thousand naira).
3. He awarded N5, 000.00 costs against the Defendants.
Dissatisfied with the judgment, the Defendants (now appellants) filed their Notice of Appeal on 1/3/2010 containing four grounds and raised the following three issues for determination:-
1. Whether the learned trial Judge was right to hold that “Ndon Oduok Akpaduatang” was not family land but the property of the plaintiff/respondent (Ground 2).
2. Whether the land known as and called “Ndon Oduok Akpaduatang” had been shared to members of Oduok Family (Ground 1).
3. Whether the Letters of Administration can confer title to the plaintiff/respondent where the root of title is defective. (Ground 3).
In the Respondent’s brief the following lone issue was raised for determination namely:-
Whether the learned trial Judge was not right in holding that the land in dispute is the land of the plaintiff.
The real issue in this case is whether the disputed land is family property which has not been partitioned as claimed by the appellants or is the private property of the respondent which he inherited from his father over which he applied and was granted Letters of Administration. Learned counsel for the appellants referred to the evidence Respondent’s father gave in suit No. HEK/14/85 tendered as Exh. ‘D’ contained in pages 7, 8 and 11 thereof and the finding of the learned trial Judge where he held that the land in dispute verged GREEN and RED on Exh. ‘B’ is not family land of Nung Oduok Akpaduatang but the personal property of the plaintiff by inheritance and submitted that this finding made by the learned trial Judge is wrong, perverse and a gross miscarriage of justice. He argued that the boundaries of “Ndon Oduok Akpaduatang” are clearly described and delineated in the three survey plans aforestated and they are the same. The judgment in Exh. ‘D’ was in respect of a portion of “Ndon Oduok Akpaduatang’, wrongly alienated was rightly described to be family land and is the portion that is in dispute. Relying on LEWIS V. BANKOLE 1NLR 81; SHAW V. KEHINDE (1947) 18 NLR and USIOBAIFO V. USIOBAIFO (2001) FWLR (Pt. 61) 1784, learned counsel submitted that family property can be created where the owner of the land whose estate is governed by customary law dies intestate such a land devolves to his heirs in perpetuity as family land. When it is a family land all family members have an equal right to the land. It is learned counsel’s further contention that whilst the plaintiff’s/respondent’s father was the family heads the legal estate or title did not reside in him but in the family. He only had life usufruct or use for life and on his demise, the title reverts to the family. The cases of OLOHUNKUN V. TENIOLA (1991) 5 NWLR (Pt. 192) 501 and TIJANI V. SECRETARY OF SOUTHERN NIG. (1921) AC 399 was cited in support of the submission. He further argued that use of family property cannot ripen to personal ownership and the use of family land by a member however long does not make the land the private property of that individual member as decided in OGBONI & ORS. V. OJAH & ORS. (1996) 6 SCNJ 140; NDUKWE v. AGHA (1998) 59 LRCN 3792;
It was submitted that the judgment of the learned trial Judge that the land known as “Ndon Oduok” had been shared by Chief Oduok Akpaduatang himself through the instrumentality of Mkpaubak custom before he died to his sons including Chief Bassey Anthony Ekong did not stem from both documentary and oral evidence before him. Learned counsel argued that throughout the trial, the plaintiff/respondent did not lay any evidence to show that the land in dispute was allotted or partitioned to his father by the family head with the consent of the other family members and to support the case of Partition, nor was evidence given on HOW and WHEN the said exercise of partition was executed as laid down in OLORUNFEMI V. ASHO FWLR (Pt. 20) 654.
Lastly, on the finding by, the learned trial (sic) that since there is no evidence that a caveat was entered when the Plaintiff applied for Letters of Administration or Exh. “C” had been cancelled, the Plaintiff had the right to inherit the disputed land from his father, it was submitted that the mere production of Letters of Administration or Survey Plan in respect of the disputed land is not enough to confer title moreso as the radical root of title is defective. Consequently it was urged on this Court to set aside the judgment of the lower court.
Learned Counsel for the Respondent submitted that since the appellants admitted the Mkpa Uba custom in paragraph 9 of the Statement of Defence, the Plaintiff/Respondent was relieved of the burden of proving the Mkpa Uba custom and since he was not cross examined on his evidence that by Mkpa Uba custom lands given by a man to his wives to farm devolved unto the male children of the wives on the death of the man and the land in dispute hereof was an Mkpa Uba land and so could not be taken away by the brothers of the giver or his other children and since this evidence stood unchallenged, the learned trial Judge can act on such evidence. He said that the Plaintiff while testifying at the trial court tendered Exhibit ‘G’ which is the certified true copy of the proceedings in Suit No. 46/74 instituted by the Plaintiff’s father against the defendants hereof and one Peter Oduok. In the said Exh. ‘G’ 3rd defendant who testified as DW1 admitted that Plaintiff’s father is the owner of the land in dispute and this land is a neighbouring land to the subject matter of Exh. ‘D’ i.e. HEK/14/85 and it is vividly described as the land of Chief B. A. Ekong, the plaintiff’s father. He said the 3rd Defendant who testified on behalf of the other defendants as DW1 was shown pages 54 and 55 of Exh. ‘D’ and he agreed under cross-examination that the land in dispute was described in Exh. ‘D’ as land of Chief B. A. Ekong who is the Plaintiff’s father and that as far back as 1985 that different factions of the family had recognised the land in dispute as the property of Chief B. A. Ekong. He said the Plaintiff’s father is not the only Person who was a beneficiary of the Mkpa Uba custom since the other members of the family had equally benefited from it. Since the defendant’s family had once described the land and agreed that it was the property of Chief B. A. Ekong, they cannot shift from that position to confer upon themselves an undue advantage. Learned counsel cited section 151 Evidence Act and ADETORO V. UNION BANK OF NIG. PLC (2007) ALL FWLR (pt. 376) 590 in support of his submission. He therefore urged this court to dismiss the appeal.
Learned counsel for the appellants filed a Reply Brief in reaction to the reliance of respondent’s counsel on Section 151 of the Evidence Act in which he argued that there was no evidence before the trial court that the appellants herein had misled the respondent’s father to believe and to act upon that belief that the disputed land was his personal and private property. He went further to submit that the respondent’s father had constructive knowledge that the land in dispute was family land as he made no improvement on it and when he litigated upon it he did so in a representative capacity.
The Plaintiff’s/Respondent’s father, and Oduok Robert Oduok Representing a faction of the Nung Akpaduatang family sued Peter U. Oduok and Rapheal P. Oduok in the Eket District Court in Suit No. 46/74 on 13th March, 1974 asking for the sharing of their grandfather’s lands at Akpan Odok, Ekiyip, Isa Iko Asang, Ikot Ekpo and Ndiat which were alleged to be controlled by the defendants. On the death of Peter Oduok, the following were substituted in his place: Oduok Sampson Oduok, Evans William Oduok, Oduok Peter Oduok and Etim James Oduok. This is because Peter U. Oduok defended the suit in his capacity as the family head of Nung Akpaduatang. The proceeding in that suit was tendered as Exh. ‘G’. No judgment was delivered in Exh. ‘G’ but the Plaintiff’s father testified. The 3rd Defendant/Appellant gave evidence in that proceeding. He testified as DW1.
In 1985, the Plaintiff/Respondent’s father along with Chief Oduok Peter Oduok, Chief Evans William Oduok and Mfom Sampson Oduok again sued David Adiaha, Ndarake David Adiaha and Oduok Sampson Oduok at the Akwa Ibom State High Court, Eket Judicial Division in suit no. HEK/14/85 and obtained judgment. The proceedings and judgment were received in evidence as Exh. ‘D’. The learned trial Judge declared as follows in Exh. ‘D’:-
“1. I HEREBY DECLARE that the land in dispute called UKO NDUN or NDUN ODUOK AKPADUATANG situate at Ikot Ebok, Eket within Eket Urban Area and which for the purpose of identification is particularly described and delineated on the Plaintiff’s Survey Plan No. UW/37/36 (LD) of 4th March, 1986 and verged RED and BLUE on the said Plan which has been tendered as Exhibit ‘A’, is the family land of the Plaintiffs’ family of Nung Akpaduatang alias Nung Oduok of Ikot Ebok, Eket and that the 3rd Defendant is not entitled to the said land as his personal land.
2. I FURTHER DECLARE that the said land being family land cannot be alienated by the 3rd Defendant or by any member of the said family without the consent of the Principal members of the said family.
3. I FURTHER DECLARE as NULL AND VOID the alienation of the said land by the 3rd Defendant to the 1st and 2nd Defendants AND CONSEQUENTLY any building or construction on the land by the 1st and 2nd Defendant attaches to the land and becomes the property of the Plaintiffs as representatives of their family who are entitled to the Statutory Right of Occupancy over the said land.
ORDERS
1. I HEREBY ORDER a PERPETUAL INJUCTION restraining the 1st and 2nd Defendants, their servants, agents, or privies from further entry and acts of trespass upon the said land as particularly described and delineated on Survey Plan No. UW/37/86 (LD) of 4th March 1986.
2. IT IS FURTHER ORDERED that the 3rd Defendant being member of the family of the plaintiffs should not enter the said land in dispute and carry on any manner of work except with the consent and permission of the 1st plaintiff who is the Head of the family or his successor.
3. I HEREBY ORDER that the Defendants jointly and severally pay to the Plaintiffs general or trespass which I assess at N10, 000. (Ten thousand naira).
4. I assess the cost of this action against the Defendants at N800.00 (Eight Hundred Naira).”
In order to resolve the issue in this appeal, it is necessary to find out whether the disputed land was part of the land on which judgment was given in Exh. ‘D’.
If however the disputed land over which the Plaintiff/Respondent was granted the Letters of Administration was the land his paternal grandmother was given to cultivate, by Eket tradition and custom called ‘Mkpa Uba’ he was entitled to inherit such land.
In his evidence in Exhibit ‘G’ the 3rd Defendant/Appellant conceded that the Plaintiff’s/Respondent’s father inherited those lands his mother often cultivated which automatically became his (See page 7 lines 25 – 28 of Exh. ‘G’).
The learned trial Judge based his decision on the issue raised by the defendants’ counsel which he considered to be more broad based and encompassing. The issue he considered was –
1. Whether the land in dispute is family land
2. Whether the land known as “NDON ODUOK” had ever been partitioned to members of Oduok Akpaduatang family which includes the Plaintiff’s father.
3. Whether the Plaintiff has a right of inheritance to the disputed land.
The learned trial Judge evaluated the evidence adduced and stated as follows at page 94 of the records-
“There is overwhelming evidence, particularly documentary evidence pointing to the irresistible fact that the land in dispute is the property of the plaintiff. The plaintiff tendered Exh. ‘B’ in evidence without objection from the defendants. Exhibit ‘B’ is the plaintiff’s L and Dispute Plan. From this Exhibit, Ndon, Oduok was a vast parcel of land. South of Oduok Street and East of Inyang Etuk Street lies a stretch of land which is divided into four distinct portions. The 1st portion East of Etuk Street and South of Oduok Street is verged RED and is the area in dispute. That portion of land is indicated to be the land of the plaintiff’s father Chief B. A. Ekong. Next to the first portion is the portion described as “NDON ODUOK AKPADUATANG”. This second portion contains the family compound and is indicated not to be in dispute. The third portion is the portion described as the “Land of Samson Oduok” and is said to be not in dispute. The 4th portion is described as the “LAND OF ETIM JAMES ODUOK” and it is also not in dispute. North of the above stretch of land containing the above mentioned four portions is Oduok Street. North of Oduok Street is another stretch of land which is divided into three parts. The first portion from the left is the land of Raphael Peter Oduok who is the 3rd defendant in this suit. The second portion is the land of Okon William Oduok who is the 5th defendant. The third portion is St. Gregory School Compound. These three portions are not in dispute. The plaintiff also tendered in evidence Exh. ‘A’. This is the property survey plan made by the plaintiff’s father Chief Bassey Anthony Ekong. This plan was produced by Surveyor E. 5; Akpan for Chief Bassey Anthony Ekong on 30/3/92. This Exhibit has survey beacon stones with the following members SEL 45003; SEL 45006; AKC 70851; AKE 30318 and AKE 30319. These beacon stones are reflected in the first portion in Exh. ‘A’ verged RED. Exhibit ‘A’, I must say, shows act of ownership or possession by the plaintiff’s late father Chief Bassey Anthony Ekong.”
The learned trial Judge considered the judgment in Suit No. HEK/14/85 and held that the judgment “only declared that portion on Exhibit ‘A’ now Exhibit ‘K’ verged RED and BLUE as family land to the exclusion of the 1st, 3rd and 4th portions”. He stated further –
“The judgment of the court is very clear. From Exh’ ‘K’, it is clearly labeled that the first portion of land from the left is the land of chief B. A. Ekong who was the plaintiff’s father. From Exhibits ‘B’ and ‘H’, it is the portion that belonged to the plaintiff’s father that is now in dispute. I have taken time to analyse suit No. HEK/14/85 and its judgment which is Exh. ‘D’ because the defendants relied so much on that judgment and argued perforce that the entire area verged GREEN on Exh. ‘K’ was declared by the court to be family land. That is not true.” (See page 96 lines 5 – 13).
He then found that he land in dispute verged GREEN and RED on Exhibit B is not family land of Nung Oduok Akpaduatang, but the personal property of the plaintiff by inheritance.
The learned trial Judge made an exhaustive analysis of the evidence adduced before coming to the conclusion that the plaintiff’s father inherited the disputed land which is in tandem with the admission made by the 3rd Appellant in Exh. ‘G’ according to the custom of the Eket people known as “Mkpaubak”.
This finding by the learned trial Judge is clearly borne out by the evidence adduced in the lower court. The findings of the learned trial Judge are not perverse; consequently this court cannot reverse those findings in order to arrive at the conclusion that the land in dispute is family property which has not been partitioned.
Accordingly I find that the appeal has no merit and it is accordingly dismissed. I affirm the judgment of the lower court and assess costs of N20, 000.00 in favour of the Respondent against the Appellants.
ISAIAH OLUFEMI AKEJU, JCA: I read before now the judgment delivered by my learned brother, Mika’Ilu, JCA. I agree with him that the appeal has merit and I allow it with no order as to costs.
Appearances
BASSEY AKPAETTIM, ESQ.For Appellant
AND
LIVINUS UDOFIA, ESQ.For Respondent
