ABANG v. NDOMA (2020)

ABANG v. NDOMA

(2020)LCN/14532(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 08, 2020

CA/C/311/2015

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

ABANG OJONG ABANG APPELANT(S)

And

HON. PATRICK ORI NDOMA (For & On Behalf Of Ovide Children Of Late Mr. Ndoma Of Okuni Ikom) RESPONDENT(S)

RATIO

THE DUTY OF THE TRIAL COURT IN THE EVALUATION OF EVIDENCE

Evaluation of evidence entails the trial judge examining all the evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other. Thus, evaluation involves reviewing and criticizing as well as estimating the evidence and it is by this process that the Court can arrived at the proper decision of who to believe and who to disbelieve. The believe must therefore be a reasoned preference of one version of the evidence to the other. See MOGAJI V ODOFIN (1978)4 SC 1 AJAGBE V IDOWU (2011)9 NWLR (prt 1276) 422 and AKINBADE V BABATUNDE (2018)7 NWLR (prt 1618) 366 at 395. PER SHUAIBU, J.C.A.

WHETHER OR NOT A CLAIM IN TRESPASS IS ROOTED IN EXCLUSIVE POSSESSION

A claim in trespass is rooted in exclusive possession and all that a claimant needs to prove is that he has exclusive possession of the land in dispute. Once a defendant claims ownership of the same land, title is put in issue and for the plaintiff to succeed he must show a better title than the defendant. See OLANIYAN V FATOKI (2003) 13 NWLR (prt 837) 273, ENEH V OZOR (2016)16 NWLR (prt 1538) 219 and PROVOST LAGOS STATE COLLEGE OF EDUCATION V EDUN (2004) 6 NWLR (prt 870) 476. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross River State, sitting at Effraya delivered on 27th February, 2012 in which the lower Court dismissed the claim of the appellant and granted the respondent’s counter claim. The appellant as claimant at the lower Court took out a writ of summons both filed on 3rd March, 2010. In paragraph 15 of the statement of claim, the appellants as claimants thereat claimed from the defendant/respondent as follows:-
1. Setting side paragraphs 7, 8 and 10 of the WILL of Late Mr. Ori Ndoma dated 10th March, 1999 and registered as No 951 of 5th May, 2005.
2. As order of injunction restraining the defendants, their agents or assigns from trespassing into the estate/property of late Mpanto Agbor.
3. The sum of N5,000,000.00 (Five Million Naira) for trespass.

Upon being served with the originating processes, the respondent herein filed a defence and counter-claimed thus:
The counter-claimants therefore claim against the defendant as follows:-
i. A declaration that the defendants not being beneficiaries of

the estate of Late Ori Ndoma has no right whatsoever to interfere or intermeddle in the management and control of their late father’s estate.
ii. An order of perpetual injunction restraining the defendants by themselves, agents, servants, privies, cohorts and whosoever acting on their behalf from trespassing into and or interfering with any part of the counter-claimants inheritance as bequeathed to them in the Will of late Ori Ndoma.
iii. The sum of N5,000,000.00 (Five Million Naira) only for trespass.

Pleadings were filed and exchanged and the matter proceeded to trial wherein witnesses were called and exhibits tendered. In a reserved and considered judgment delivered on 27th February, 2012, learned trial judge found at page 167 of the record of appeal as follows:-
“I have gone through the evidence of the claimants and it is clear from their evidence and even the content of exhibit i.e. the WILL of late Ori Ndoma that the late Ori Ndoma had personal farms and other properties of his own. In fact the pw3 Nta Emmanuel Ojong Ojong told the Court on 10/5/2011 that the Ori Ndoma had his own cocoa farm along Agbokim Estate and Abia

road. Dw7 testified to this fact too.
The question is how did the claimants arrive at the conclusion that the late Ori Ndoma built his house exclusively from proceeds of late Mkpato Agbor or the family estate.
This is highly speculative and cannot be relied upon by the Court in setting aside paragraph 7 of Exhibit 1.”

He continued of pages 167 – 167 of the record of appeal:-
“Having evaluated the evidence of pw1-pw4 and (sic) Dw1 and going through the exhibits before the Court, I find and hold that:
1. This action involves an injunctive relief and in law the exact boundaries of the land or farm to be affected by the injunctive relief must be clearly defined and/or described. In the instant case, it was not defined in the claim or specifically pleaded. The land and cocoa farms description is vague and the Court cannot therefore grant the claimants their claim in this regard.
He continued further that:-
“In respect of setting aside of paragraph 7 of the said Exhibit 1, the claimants have not proved on a balance of probability that late Ori Ndoma built the house he described at paragraph 7 of Exhibit 1

from the proceeds of the estate of Late Mpanto Agbor. Their evidence is speculative and is not backed by evidence.
In respect of the second claim; the reasoning of the Court that the boundaries of the land/property of late Mpanto Agbor not having been specifically pleaded goes to the root of this suit and therefore an injunctive relief cannot be granted hold sway.”
At pages 169 – 170 of the record of appeal, learned trial judge concluded thus:
“In conclusion, the claim of the claimant fails as same lacks merit and is hereby dismissed.”
Judgment is accordingly entered for the counter-claimant. It is hereby ordered that:
1. The defendant not being the beneficiaries of the estate of Late Ori Ndoma have no right whatsoever to interfere or intermeddle in the management and control of his estate as contained in paragraphs 7, 8 and 10 of the WILL of late Ori Ndoma.
2. That an order of perpetual injunction is hereby granted restraining the defendants by themselves, agents, servants, privies, cohorts, and whosoever acting on their behalf from trespassing into and interfering with any part of the

counter-claimant’s inheritance as bequeathed to them in paraqgrphs 7, 8 and 10 only of the WILL of late Ori Ndoma.
3. N10,000.00 (Ten Thousand Naira) only is hereby awarded as costs against the defendants.”

Dissatisfied, appellant filed this appeal through a notice of appeal filed on 11/3/2012. The appeal at pages 175-177 of the record of appeal contains four grounds of appeal which was amended and further amended on 9/5/2019.

At the hearing of the appeal on 3/6/2020, S. O. Ijoma, Esq., adopted and relied on the appellant’s brief of argument filed on 4/10/2018 in urging this Court to allow the appeal. Hitherto, on 28/11/2018, the appellant herein had applied and was granted leave to inter alia strike out the names of 1st – 3rd appellants and also determine the appeal solely on the appellant’s brief of argument, the time allowed for the filing of respondent’s brief of argument having already lapsed.

The appellant’s brief settled by O. N. Agbor Esq., nominated the following three issues for the determination of this appeal as follows:
1. Whether the Trial Judge properly evaluated and weighed the

evidence of the parties in this case before reaching a conclusion as he did in this case. (Distilled in ground 2 and 3).
2. Whether the Trial Judge was right in reaching a conclusion that the identity of parcel of land as bequeathed in the WILL of the respondent’s late father was in issue. (Distilled from ground 1).
3. Whether the findings of the Trial Judge was not perverse leading to serious miscarriage of justice. (Distilled from ground 4).

Arguing the first issue, learned counsel for the appellant contend that the evidence called by the appellant at the lower Court point to the fact that the properties as described in Exhibit 1 (the WILL) in paragraphs 7, 8 and 10 of Exhibit 1 are family property of the claimants. And that the respondent accepted the fact that his late father took over the management and control of the family cocoa farms and erected a four rooms building at Ayork in Bendeghe Ekiem before handing over the two farms to Ekuri Mpanto and Obi Mpanto over 30 years ago. Thus, the conclusion reached by the trial judge to the effect that the appellant’s claim was speculative runs contrary to the respondent’s

admission. He submits that the evidence of a party or of his witness which favours the opponent’s case is a solemn admission in favour of the opponent’s case. He referred to OSEMWINGIE V OSEMWINGIE (2014) ALL FWLR (prt 710) 1322.

In further contention, learned counsel argued that the respondent’s evidence as contained in his sworn statement did not contain pleadings with regard to counter claim. Although the appellants need to succeed on the strength of their case and not the weakness of the defence, they were entitled to take advantage of any aspect of the defence case that strengthens their own case. He submits that the trial Court has failed to evaluate the evidence of the parties and that the appraisal of evidence is not deducible from the record.

On the second issue, learned counsel referred to the averments in paragraphs 6 and 7 of the statement of defence as well as paragraphs 6, 7, 8, 9, and 10 of the respondent’s sworn statement to contend that the respondent admitted the identity of the properties claimed by the appellants. He submits that where the identity of the land or property in dispute is known

to the parties, no onus is placed on the claimant for a declaration of title to prove identity of the said land. He referred to KYARI V ALKALI (2001)FWLR (Prt. 60) 1481.

He submits further that the reliefs sought in the instant case not being declaratory in nature does not require the standard of identification of the property in issue as the identity of the said property is clearly stated in the said WILL and evidence of both parties which is ad idem.

On the third issue, learned counsel submits that the findings of the learned trial judge respecting the identity of the land in dispute as well as the conclusion that the respondent’s father had his own personal farms were made in total neglect of the respondent’s admission in both the statement of defence and sworn statutory on oath and thus the findings are perverse. He referred to MAYA V OSHUNTOKUN (2001) FWLR (prt 811) 1777 to the effect that there is ample evidence which the trial Court failed to evaluate and make proper findings on the issue.

I have carefully examined the argument of the learned counsel for the appellant in relation to the three

issues formulated for determination. I however find the said three issues to be intertwined and interwoven. The second and third issues could be conveniently subsumed into the first issue. I shall in the circumstance determine this appeal on the basis of the first issue, that is;
Whether the trial judge properly evaluated and weighed the evidence of the parties before reaching a conclusion as he did in this case.

The substration of the appellants’ complain against the judgment of the lower Court is that it failed to properly evaluate the evidence presented to it in respect of both the appellant’s claim and the respondent’s counter-claim and hereby arrived at a perverse decision.

preference of one version of the evidence to the other. See MOGAJI V ODOFIN (1978)4 SC 1 AJAGBE V IDOWU (2011)9 NWLR (prt 1276) 422 and AKINBADE V BABATUNDE (2018)7 NWLR (prt 1618) 366 at 395.

In the case leading to this appeal, the appellant as claimant sought inter alia an order setting aside some paragraphs of the WILL of late Mr. Ori Ndoma dated 10th March, 1999 and registered as NO 951 of 5th May, 2005 and an injunction for trespassing into the estate of late Mpanto Agbor. The respondent’s by counter-claim also sought for declaration that the appellant herein not being beneficiary of the estate of late Ori Ndoma cannot interfere in the management and control of their late father’s estate and hence prayed for an order of perpetual injunction against trespassing unto the said bequeathed property/estate.

Learned counsel for the appellant has argued that the appellant as claimant before the lower Court had established his entitlement through the evidence of pw1 – pw4, Exhibit 2 and the respondent’s own admission. He faulted the findings of the lower Court on the

appellant’s failure to prove the exact boundaries of the land contending that the reliefs sought not being declaratory in nature, does not require the standard of identification of the property in issue.

To ascertain the nature of the reliefs sought by the parties, one needs to look at their respective pleadings. In paragraphs 3 – 13 of claim of pages 2 – 13 the statement of claim at pages 2-13 of the record of appeal, appellant averred as follows:
“3. The claimants state that late Chief (Nta) Agbor Ntor of Ayork in Benedeghe Ekiem married Madam Nkan Abang of Biakwan in Boki and the marriage had three children:- Madam Oruka Agbor, Madam Oru Agbor and Mr. Mpanto Agbor. All of blessed memory.
4. Madam Nkan Abang (i.e Mrs Nkan Agbor Ntor) divorced late Chief Agbor Ntor and married another man at Okuni where she had late Mr. Ori Ndoma (the husband and wife to defendants).
5. When Madam Nkan Abang died, Mr. Mpanto Agbor (late) her son took over the upbringing of late Ori Ndoma and took him to Bendeghe from Okuni.
6. Mr. Mpanto Agbor himself had Ekuri Mpanto, Obi Mpanto, Mankpa Mpanto while Madam Oru Agbor is the

mother to 2nd claimant and madam Oruka Agbor is grandmother to the 4th claimant.
7. Upon the death of Mpanto Agbor this cocoa farm was passed on to the late Ori Ndoma to hold in trust for the children of late Mpanto Agbor. He was charged to use the proceeds from the said farm to put a building for the family and to acquire other farms.
8. Rather than do as demanded above, the late Ori Ndoma converted family cocoa farm and put up a building for himself. He attempted to convert the family parcel of land along College Road into his own estate. He assigned these properties to the defendants in his purportedly WILL registered as No. 951 filed 5th May, 2005 but dated 10th March, 99 in the Probate Division of the High Court, Calabar. It is pleaded.
9. The claimants state that when Ori Ndoma died in 2004, the family land, cocoa farm and the building were transferred to late Chief Ojong Abang. When some of the children of late Ori Ndoma challenged this, the matter was resolved in the Ekume Atufam Traditional Rulers Council of Bendeghe Ekiem.
10. In a Resolution dated 20th January, 2009, the said Traditional Rulers Council of Bendeghe resolved that

the family cocoa farm of Nta Mpanto Agbor managed by late Ori Ndoma be managed by late Chief Ojong Abang to the year 2010 after which the farm will be shared to the children of Mpanto Agbor. Also to manage the cocoa farm of late Ori Ndoma to 2010 and to share it to the children of late Ori Ndoma. The resolution is pleaded.
11. The claimants state that the late Ori Ndoma had devised the family parcel of land in paragraph 8 of the WILL situate along College Road, Bendeghe Ekiem to 1st defendant and her children.
12. The claimants state that a cocoa farm situate along Abia/Bendeghe Road, Bendeghe Ekiem which belongs to the family of the claimants was devised to children of Ori Ndoma in paragraph 10 of the WILL.
13. The claimants state that their family compound situate at Ayork was willed to the 1st defendant and her children in paragraph 7 of the WILL.

The respondent on his part averred at paragraphs 3, 4, 5 and 6 of the counter-claim at page 31 of the record of appeal thus:-
“3. The counter-claimants state that their deceased husband and father being a hard working man not only deforest and cultivate the cocoa farm along Abia

– Bendeghe Road, which farm is bounded as follows:
North – Egbe Takon Abang
South – Mma Abang Enya, Tailor Ayuk and Ecomog
East – Abia Road
West – Bendeghe community Farm
4. The counter-claimants state that late Ori Ndoma also acquired virgin lands and planted cocoa along Ekuri Mgbe Mbuk farm road, specifically at Echi Njok, and that the said cocoa farm is bounded in the North by P. I. Ejukwa, South by ICE, East by Ete Oruk Ayuk and West by Matthew Ogar Ogar and Mgbe Awunghe’s cocoa farms.
5. The counter-claimants further add that their deceased father also planted a palm plantation after Etung Comprehensive Secondary School, Benedeghe Ekiem, Etung and that the aforementioned property, late Ori Ndoma bequeathed to his beneficiaries.
6. The defendants have been laying claims to have authority, control and management of the counter-claimant’s estate wherefore the counter claimants contend that the defendants have no right or any colour of right to interfere, trespass or intermeddle with the estate of their deceased father.

From the above, the reliefs sought by both parties are predicated on trespass.

The cumulative effective of the appellant’s case is that the properties as described in the WILL Exhibit 1 are family property of the claimant. In his evidence at the lower Court, pw1 said the cocoa farm was planted by Mpantor Agbor, his great uncle and upon his demise the 2nd defendant father took on the administration of the farm. Pw1 was emphatic that a decision was reached by Bendeghe – Ekiem Traditional Rulers Council that after 2010, the farm of Mpantor Agbor should be given to his children and that of Ori – Ndoma.

When pw2 was cross-examined at page 123 of the record of appeal, he simply said:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“It is thus my aunt Oru Agbor that informed me of my late father’s property.”
Also in his evidence, pw3 at page 129 of the record said –
“I do not know if late Ori Ndoma made a WILL. Late Ori Ndoma did not build a house for the children Mpanto Agbor. Late Ori Ndoma has his own cocoa farm along Agbokim Estate Road and along Abia Road.”

On his part, pw4, the clan Head of Okosoro, Bendeghe Ekiem and Prsident of Ntufam Council of Bendeghe Ekiem told the lower Court that the community made a resolution in respect of the cocoa farm in Exhibit 2. He said it is not correct that 2nd defendant’s father had two cocoa farms as said by the pw3. He wants the lower Court to believe his own testimony which runs thus:-
“Mpantor Agbor had a cocoa farm and a building, when he died they brought Nta Ori Ndoma from Okini to come and inherit Mpantor Agbor’s cocoa farm and his building. Nta Ori Ndoma drove away Mpantor Agbor’s wives and children. He inherited that farm for fifty-one (51) years. When the case came up to us, we looked at it as Nta Ori Ndoma refused to train any of Mpantor Agbor’s

children. We decided that Ojong Abang Atu should take over the cocoa farm for three (3) years.
Nta Ori Ndoma also used money derived from Mpantor Agbor’s cocoa farm and built houses at Ikom and Okini without building any at Bendeghe Ekiem.”

By virtue of Section 143 of the Evidence Act, 2011, when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. In the instant case, the appellant having pleaded, or asserted that the respondent is not entitled to the bequeathed estate has the burden to establish his/their superior title in the properties listed in paragraphs 7, 8 and 10 of the WILL of late Mr. Ori Ndoma and then proceed to further show that the Ntufam Council of Bendeghe Ekiem had lawfully and legally handed over the said estate/property to the appellant herein. This is more compelling when the respondent gave evidence that the parcel of land along college road is not the same as the one contained in paragraph 10 of Exhibit 1. Also on the resolution in Exhibit 2, the evidence of the

respondent is that same was not to the effect that the estate in question should be handed over to the children of Mpantor Agbor and Ori-Ndoma after three (3) years.

The lower court did examine the evidence on record and rightly in my view, found that the appellant failed to prove his case.

The next germane issue is whether there was evidence before the lower Court to sustain the grant of the reliefs in the counter-claim. A counter-claim is a cross-action and where the plaintiff fails in proving his claim the defendant on proving his counter-claim may succeed. Whether in respect of the claim or the counter-claim, therefore, the plaintiff or the defendant as the case may be, must discharge the burden of establishing his entitlement to the reliefs he claims.

The question here is did the counter-claimant establish his entitlement to the reliefs in the counter-claim?

Learned counsel for the appellant has submitted and I agree with his submission that mere averments without evidence in proof of pleaded facts go to no issue. I have reproduced the pertinent averments in paragraphs 3 – 6 of the counter-claim. Also in his evidence, the

respondent as Dw1 at page 136 of the record of appeal said:-
“I know the family farm in dispute very well. The particular farm is situate along Abia Road in Bendeghe Ekiem. To the North by Bebia Ntughugbe to the East by Orim Obi; to the West by Abia Road, to the South, by same Orim Obi.”
On the WILL, Dw1 said:-
“The WILL Exhibit 1 was read in 2005 before the children of Ori Ndoma. I do not know why the claimants are in Court. I am in Court because I am fighting for my father’s right.”

In the light of the convincing and cogent evidence led by the defendant/counter-claimant in support of the counter-claim, the lower Court was also right to have granted the reliefs in the counter-claim. And where the trial Court has unquestionably evaluated the evidence and appraised the facts, it is not the business of an Appellate Court to substitute its own views for the views of the trial Court.

I remain unconvinced that the lower Court’s judgment is perverse and has not emanated from the evidence on record as contended by the appellant. Consequently, I find no merit in the appeal, which is hereby dismissed.
I make no order as to costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have the opportunity of reading in draft the judgment delivered by my learned brother Muhammed L. Shuaibu JCA. I agree with the reasoning and conclusion reached in the judgment. I also find no merit in the appeal which is accordingly dismissed.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother Muhammed L. Shuaibu, was made available to me in draft before now.
Having also studied the record of proceedings and heard arguments with respect to the grounds of appeal raised. I also dismiss the appeal and abide on order made on costs in the lead judgment.

Appearances:

O. Ijoma Esq.For Appellant(s)

..For Respondent(s)