EFFIOM & ORS v. ITA & ANOR (2020)

EFFIOM & ORS v. ITA & ANOR

(2020)LCN/14767(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, November 04, 2020

CA/C/285/2019

RATIO

PLEADINGS: EFFECT OF AN UNCHALLENGED AVERMENT IN PLEADINGS

As a matter of law, an averment in a party’s pleadings is deemed to have been admitted if not specifically denied or traversed. In fact, a Plaintiff’s averment of facts must be met by the Defendant frontally and categorically. Once a Plaintiff’s averment is not met directly, the Defendant is taken to have admitted it. See OTTO v. MABAMIJE (2004) 17 NWLR (Pt. 903) 489; BRITISH AIRWAYS v. MAKANJUOLA (1993) 8 NWLR (Pt. 311) 276; N.B.C. PLC. V. OLAREWAJU (2007) 5NWLR (Pt. 1027) 255. PER OWOADE, J.C.A.

LAND LAW: DUTY OF A PLAINTIFF WHO CLAIMS A DECLARATION OF TITLE TO LAND

It is trite that a Plaintiff such as the Appellants Counter Claimants in the instant case who claims a declaration of title to land has the burden of setting out clearly by who and how the land was founded and the names of persons who had exercised acts of ownership on the land before it devolved upon him. See OLOKOTINTIN v. SARUMI (2002) 13 NWLR (Pt. 784) 307 SC; IBIKUNLE v. LAWANI (2007) 3 NWLR (Pt. 1022) 580 (CA); OKOKO v. DAKOLO (2006) 14 NWLR (Pt. 1000) 401 SC. PER OWOADE, J.C.A.
EVIDENCE: ON WHOM LIES THE ONUS OF PROOF IN AN ASSERTION

Therefore, in law, he who asserts must prove. Here since Defendants/Counter claimants claims that the Community (Ekpri Obio Abakpa) only has a single family to the exclusion of the others, it is their duty/burden to so proof. See Section 131(1) and 132 of the Evidence Act, 2011 and YUSUF v. ADEGOKE & ANOR (2007) LPELR 0 4SC (Pt. 1) 126 @ 129-140. PER OWOADE, J.C.A.

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

CHIEF ASE OKON EFFIOM 2. MR. UMO OKON EFFIOM 3. MR. MAURICE EFIO ASE (FOR THEMSELVES AND ON BEHALF OF ASEKEN FAMILY OF EKPRI OBIO ABAKPA) APPELANT(S)

And

CHIEF ITA ASUQUO ITA (FOR HIMSELF AND ON BEHALF OF ASA ITU FAMILY OF EKPRI OBIO ABAKPA VILLAGE) 2. MR. BASSEY EKPO ASUQUO (FOR HIMSELF AND ON BEHALF OF NYAM ABASI ISO FAMILY OF EKPRI OBIO ABAKPA VILLAGE) RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):This is an appeal against the decision of Hon. Justice S.M. Anjor at the Calabar Judicial Division of the Cross-River State High Court delivered on 30th April, 2019.

The Respondents as Claimants issued a Writ of Summons accompanied by a Statement of Claim against the Defendants Appellants on 7/6/2010.

The case of the respective parties crystallized at trial to the filing of the following processes:
1.Further Amended Statement of Claim of 2/10/2012.
2.Further Amended Statement of Defence of10/12/2015.
3.Amended Reply and Defence to Counter-Claim of 24/1/2014.

In paragraph 24 of the Respondents Further Amended Statement of Claim, the Respondents claim against the Appellants Defendants as follows:
i. A declaration that Ada Itu Family, Nyam Abasi Iso Family, Okpo Abimba Family, Edim Nya Family, and Asekon Family are the five principal families in Ekpri Obio Abakpa village in Bakassi LGA of Cross River State and are entitled to an equal share, interest and say in the affairs of Ekpri Obio Abakpa village and in the management of the village communal resources.

A declaration that the sale and/or lease of Ekpri Obio Abakpa village timber and communal land by the Defendants without consent of the other principal families in Ekpri Obio Abakpa village (including the Claimants on record) is unlawful, null and void.
iii.An order that the Defendants render an account of the proceeds from their sale and/or lease of Ekpri Obio Abakpa village timber and communal land and file same in Court within fourteen days from the date of judgment; and thereafter pay over to the Claimants families two fifth of such proceeds being their equal share of the proceeds from the village communal land and resources.
iv. An order of perpetual injunction restraining the Defendants by themselves, their servants, agents or privies from renaming, addressing or representing Ekpri Obio Abakpa village in Bakassi LGA of Cross River State as Abakpa Efio Ase village to the government or to any authority or persons whatsoever, except and unless such a change of name is accepted by all the principal families in the village.
v. An order of perpetual injunction restraining the Defendants by themselves, their servants, agents, workmen and privies

from all further unilateral dealings with Ekpri Obio Abakpa communal land and resources without consultation with and necessary consent from the other principal families in the village.

The Defendants’ Appellants also counter claimed in their Further Amended Statement of Defence at page 224 of the Record of Appeal thus:
1.A declaration that Abakpa Efio Ase and not Ekpri Obio Abakpa refers to the same village.
2.That the 1st Claimant is not from Abakpa Efio Ase or Ekpri Obio Abakpa and so cannot complain about the name of the village.
3.An order of perpetual injunction restraining the Claimants from disturbing the name Abakpa Efio Ase as the name of the village.
4.That Ase Ekong family is the only family in Ekpri Obio Abakpa or Abakpa Efio Ase and that every true indigene of the village traces his/her origin to that family.
5.N5 Million general damages.

The facts of the case are that the Appellants and the Respondents are indigenes of Ekpri Obio Abakpa village in Bakassi LGA of Cross River State. In 2006, the Appellants applied to the Cross River State Government to rename the village as Abakpa Efio Ase on the ground that

the village was founded by Efio Ase, the progenitor of the Appellants’ family, and as such the entire village is owned by the Appellants’ family and all other families in the village are mere settlers.

The Respondents opposed the Appellants’ representation to the government by insisting that the name of the village should be retained as Ekpri Obio Abakpa because the village was founded and is owned communally by the five principal families in the village and not by the Appellants’ family alone.

The 1st Appellant’s response to the Respondents’ objection was to use his authority as the incumbent village head of Ekpri Obio Abakpa to expel the representatives of other families from the Village Council, leaving only the members of the Appellants’ Ase Ekong (also spelled as Asekon) family as members of the Village Council.

In spite of vehement objection by all the other families in Ekpri Obio Abakpa village, the Appellants’ family proceeded to sell the village timber and to alienate the village land without the consent of the other families who were excluded from the Village Council.
Consequently, the

Respondents, as representatives of some of the aggrieved families in Ekpri Obio Abakpa village, filed this suit against the Appellants and their family.

At the trial the Respondents called three witnesses who testified as PW1 to PW3. The Appellants also called three witnesses who testified as DW1 to DW3.

The learned trial judge took the view that “since the Defendants Counter Claimants claims that the community (Ekpri Obio Abakpa) only has a single family to the exclusion of the others, it is their duty/burden to so proof….” And that the said burden was not discharged by the evidence of DW1 and DW3 without any independent corroboration, perhaps from the Qua Clan Council.

Also, according to the learned trial judge “whereas Claimants witnesses evidence supported by some Exhibit earlier listed in this judgment has not been materially discredited under cross examination, that if (sic) of the Defendants counter claimants is not the same (as it was battered under cross examination)”.

The learned trial judge concluded by granting most of the reliefs sought by the Respondents and dismissed the reliefs sought in the

Appellants counterclaim.

Aggrieved by the judgment, the Appellants initiated this appeal through a Notice of Appeal containing four (4) grounds of Appeal filed on 16/5/2019. The relevant briefs of Argument are:
(i) Appellants brief of Argument of 26/8/2019. It is settled by A.A. ANNAH, Esq.
(ii) Respondents brief of Argument of 7/10/2019. It is settled by Essien H. Andrew SAN.
(iii) Appellants Reply brief of Argument of 25/10/2019. It is settled by A.A. ANNAH, Esq.

Learned Counsel for the Appellants nominated two (2) issues for the determination of the Appeal. They are:
(a) Whether having regard to the pleadings and evidence of the parties, the Claimants established their case that there were five families in Ekpri Obio Abakpa village upon the preponderance of evidence especially the admitted documentary evidence (Grounds 1, 2, and 3).
(b) Whether upon pleadings and evidence of the parties particularly the documentary evidence tendered and admitted and the independent corroborative evidence of DW2, the Defendants Counter-claim ought to succeed (Ground 4)

Learned Senior Counsel for the Respondents on the other hand nominated a

sole issue for the determination of the Appeal. It is:
Whether the decision of the learned trial judge was justified having regards to the pleadings and evidence adduced by the parties.

On Issue No. 1, Learned Counsel for the Appellants submitted that the case of the Respondents before the lower Court on the number of families in Ekpri Obio Abakpa village was that there were five families in Ekpri Obio Abakpa village namely, Ada Itu, Nyam Abasi Iso, Okpo Abimba, Edim Nya and Asekon families, and that family headship of Ekpri Obio Abakpa village rotates between the five families.

That the Respondents further assert that EkpriObio Abakpa village was founded by a group of Qua people led by one Okpo Abimba and with time, the people who migrated to settle in Ekpri Obio Abakpa village evolved into five families namely Ada Itu (alias Asuquo Ita), Nyam Abasi Iso (alias Eyo Ene), Okpo Abimba (alias Etta Effa), Edim Nya (alias Ma Arit Ekpo) and Asekon (alias Efio Ase) families. (page 165 of the Record)

He submitted that the Respondents also assert that the rulership of Ekpri Obio Abakpa village was rotated between those five families (page 41 of the

record). In their pleadings, the Claimants have mentioned the names of the alleged village heads in the village from the beginning, as it rotates between the families.
S/N FAMILIES VILLAGE HEADS
1. OKPO ABIMBA OKPO ABIMBA
2. EDIM NY EDIM NYA
3. NYAM ABASI ISO MBE EFA
4. EDIM NYA OKON EKPO NSA
5. EDIM NYA ATIM ETIM BUTT
6. ASE KON OKON EFIO ASE
7. NYAM ABASI ISO ASUQUO EFA
8. ADA ITU ASUQUO ITA
9. OKPO ABIMBA BASSEY MKPANAM
10. ADA ITU ABASI ASUQUO ITA
11. ASE KON ASE OKON EFFIOM
(page 166 of the record)

From the above, said Appellants’ Counsel, it is obvious that the Respondents have not in their evidence before the lower Court proved that the rulership of Ekpri Obio Abakpa village rotated amongst their alleged five families as their alleged Edim Nya Family produced the 2nd, 4th and 5th village heads, before families like Asekon and Ada Itu families took their alleged turn as 6th and 8th village heads respectively. Thus, the evidence of the Respondents that these alleged families ruled Ekpri Obio Abakpa in rotation was not proved.

Appellants counsel submitted that the PW2 in his

evidence, said thus, “I knew Mbe Efa as one of the village heads in that village. He is the father to Bassey Mkpanam Efa”(page 301 of the record). Yet Mbe Efa is said to come from Nyam Abasi Iso family while Bassey Mkpanam his son is said to come from Okpo Abimba family (page 99 and 166 of the record).
He submitted that the inconsistency in the evidence and pleadings of the Respondents on this vital point is fatal to the case of the Respondents.

Learned counsel for the Appellants referred to the case of AJABI & ANOR v. OLOKO (1959) LLR 152 to say that it is settled law that when the founder of a family dies intestate, his or her children and grandchildren succeeds to such rights as their immediate parents had in the family property. That in the instant case, instead of Bassey Mkpanam succeeding to the property of his father Mbe Efa in Nyam Abasi Iso family, he (Bassey Mkpanam) is said to come from Okpo Abimba family. He submitted that there was evidence before the lower Court that the 1st Respondent who claimed to be the head of Ada Itu family had described himself in an earlier suit as the head of Asuquo Ita family of Ekpri Obio Abakpa

village (page 78 of the Record). Yet the lower Court went ahead to declare that he is the head of Ada Itu family. Also, there was no evidence as to who were the current family heads of Okpo Abimba and Edim Nya families yet the lower Court held that those families were in existence in Ekpri Obio Abakpa village. He contends that the onus of proof of the existence of these families in Ekpri Obio Abakpa rested on the Respondents and this can only be discharged by leading evidence on contemporary activities pointing to the fact that thosefamilies are in existence.

He submitted that the 2nd Respondent in his evidence said that Edet Efa Asuquo Efa, who is the Deputy village head and thus belonging to Asekon family is of the same grandfather with him and senior to him(page 296 of the Record), but the trial Court believed the evidence of the 2nd Respondent that the 2nd Respondent alleged family of Nyam Abasi Iso is one of the families in Ekpri Obio Abakpa village.

He submitted that the evidence of DW2, who stated that her ancestor and the Appellants’ ancestor left Calabar in quest of a virgin land and that while her ancestor settled and founded the

present-day Abakpa Ikot Nkot Anie, the Appellants’ ancestor settled and founded Ekpri Obio Abakpa was not contradicted in any respect (pages 170-171 of the Record).
He added that DW2 is an independent witness and that her uncontradicted evidence to the effect that the Asekon family was the only family in Ekpri Obio Abakpa being the family of the founder of the village was enough to establish the Appellants’ case.

Learned counsel for the Appellants submitted that the Respondents alleged that the land was founded by Okpo Abimba, who alongside with others settled on the land and that with time, the village was divided into five families. However, that the Respondents failed to prove the second requirement as enunciated in the case of ECHI v. NNAMANI (2000) 8 NWLR (Pt. 667) 1 that they are descendants of the founder of the land.

He submitted that the Respondents neither in their pleadings nor their evidence established in what manner the alleged five families have previously managed the affairs of Ekpri Obio Abakpa village. He referred to the cases of AJUWON v. AKANNI (2003) 2 NLLC 627 @ 631; LONGE v. F.B.N. PLC. (2006) 2 NWLR (Pt. 538)

355; RABE v. F.R.N. (2018) 12 M.J.S.C. (Pt. 11) 137; INTERNATIONAL NIGER BUILDING CONSTRUCTION CO. LTD. & ANOR v. GIWA (2002) FWLR (Pt. 107) 1312 @ 1354, Section 131 of the Evidence Act 2011 to say that the onus of proof on a material fact is on the party who asserts.

He added that there was no independent witness to corroborate the assertion that there are five principal families in Ekpri Obio Abakpa. He submitted that it is strange that the 1st Respondent accepted Exhibit 21 as a valid and proper communal lease of palm bush to him when the only lessors are from Asekon family.

That since the 1st Claimant Respondent had accepted Exhibit 21 as a valid and proper communal transaction involving him and Ekpri Obio Abakpa village, he cannot now complain that the Asekon family which signed the agreement as sole lessor of the palm bush to him is not the only family entitled to manage the resources of Ekpri Obio Abakpa village.

Consequently, that the Respondents are stopped from approbating and reprobating at the same time on the issue of the number of principal families in Ekpri Obio Abakpa village. On this, Learned Counsel for the Appellants

referred to the cases of MBANASO v. OFFOR & ORS. (2012) LPELR 1883; ADETORO v. UBN PLC. (2007) ALL FWLR (Pt. 396) 590 @ 630; ENTERPRISE BANK LTD. v. AROSO (2014) 5 NWLR (Pt. 1394) 256; UDE v. NWARA & ANOR. (1993) 2 NWLR (Pt. 278) 638; ADERONPE v. ELERAN & ORS. (2018) 12 MJ.S.C. (Pt. 1) 60.

He submitted further that there was no evidence before the lower Court to show that the resources of the village or the village proceeds had previously been shared on family basis or at all. That even the proceeds from Exhibit 21of which the 1st Claimant Respondent was the lessee was not demonstrated in evidence to have been divided to the alleged families.

He submitted there was also no evidence before the trial Court as to what had accrued to the village as proceeds and which land has been sold or leased from which land proceeds accrued. Thus, that the trial Court in ordering the Appellants should render account of proceeds which accrued from the village resources acted on speculation.

He added that speculative evidence not being a product of hard facts cannot be the basis of a valid decision. He referred to the cases of AWOLOLA v. THE GOV. OF EKITI STATE & ORS

(2018) 12 MJ.S.C. (Pt. 111) 1 @ 9; FRANK OKON DANIEL v. INEC & ORS. (2015) LPELR – 24566.

Appellants counsel submitted that the learned trial judge was wrong to have relied on the form of description on the process Exhibit 23 in arriving at the decision that there are five principal families in Ekpri Obio Abakpa village on the basis of documentary evidence being used as hanger on to resolve conflicts in oral evidence.

He argued that it is the form and not the substance that matters in District Court proceedings and that documentary evidence does not speak for itself. That to be relevant, there must be oral evidence linking the document to the facts in issue. He referred to the case of OMISORE v. AREGBESOLA (2015) 15 NWLR (Pt. 1483) 205.

Learned counsel for the Appellants concluded on his issue No. 1 by saying that the trial Court also misconceived the purport of the evidence of DW3 when he held that DW3 “admitted under cross examination that in 1999, 2nd Claimant father was the Deputy village head of the village, but that he was an indigene of Akai Efa in Calabar Municipality”.
Appellants counsel

argued that there was no time on record that DW3 said that 2nd Claimant’s father is from Akai Efa. He submitted that the misconception by the learned trial judge that 2nd Claimant’s father, Chief Ekpo Asuquo Efa was an indigene of Akai Efa led the trial Court to the wrong conclusion that the Respondents proved their case.

On issue No. 2, learned counsel for the Appellant submitted that based on the pleadings and evidence of the parties, particularly documentary evidence tendered and admitted, and the corroborative evidence of DW2, the Defendants Appellants Counter claim ought to succeed.
He reiterated that the evidence of DW2, who is an independent witness corroborated the evidence of DW1 that there was only one principal family (The Asekon Family) in Ekpri Obio Abakpa which family is the family of the founder of the village Ase Ekong Esu. He submitted further that if there were other families in Ekpri Obio Abakpa village, they would have signed Exhibit 21 as co-lessors.
He urged us to resolve the two issues in favour of the Appellants.

Learned Senior Counsel for the Respondents reacted to the two issues nominated and argued by

the Appellants in the sole issue formulated by him. He submitted that the action was essentially for a declaration of title to the land on which Ekpri Obio Abakpa village is situate. That consequently, issues were joined by the parties in their pleadings on the ownership of the land and the village situate thereon. The Respondents averred in paragraphs 4-7 of their Further Amended Statement of Claim (at pages 153-154 of the Record) as follows:
4.The Claimants aver that Ekpri Obio Abakpa (or Small Qua Town) was founded by a group of Qua people led by one Okpo Abimba who migrated from Big Qua Town (or Akwa Obio Abakpa) and Akim Qua Town in the present day Calabar Municipality. The migrant group deforested and established a farm settlement and named it Ekpri Obio Abakpa (or Small Qua Town) after the place they came from. EkpriObio Abakpa was formerly in Calabar Division, then in Odukpani LGA, then in Akpabuyo LGA but now it is in Bakassi LGA of Cross River State.
5.With time the people that migrated to settle in and establish EkpriObio Abakpa village evolved into five principal families namely: Ada Itu (alias Asuquo Ita) Family, Nyam Abasi Iso (alias

Eyo Ene) Family, Okpo Abimba (alias Eta Effa) Family, Edim Nya (alias Ma Arit Ekpo) Family, and Asekon (alias Efio-Ase) Family.
6.The Claimant avers that the five principal families mentioned above have equal rights and status in Ekpri Obio Abakpa village and as such the village head of Ekpri Obio Abakpa from the founding of the village and up to the present day is always from one of those five principal families and those village heads from the founding of the village till date are as follows – Okpo Abimba from Okpo Abimba family, followed by Edim Nya from Edim Nya family, then Mbe Efa from Nyam Abasi Iso family, then Okon Ekpo Nsa from Edim Nya family, then Atim Etim Butt from Edim Nya family, then OkonEfioAse from Asekon family, then Asuquo Efa from Nyam Abasi Iso family, then AsuquoIta from Ada Itu family, then Bassey Mkpanam from Okpo Abimba family, then Abasi AsuquoIta from Ada Itu family, then the 1st Defendant, Ase Okon Effiom, from Asekon family.
7.The family heads and representatives of the five principal families constitute the Ekpri Obio Abakpa Village Council which is vested with the management of the village communal land and

resources in conjunction with the Village Head. The proceeds from the management of such communal resources (e.g. monies realised from the sale of village timber or lease of the village land or oil palms) are usually shared equally among the five families or applied to a communal project agreed on by all the five families.

That the averments above were denied by the Appellants in paragraphs 5, 6 and 13 of their Further Amended Statement of Defence. They (Appellants) averred as follows:
5. The Defendant deny paragraph 4 of the Statement of Claim. In further reply to the averment in paragraph 4 of the Statement of Claim the Defendants avers that the present Ekpri Obio Abakpa was founded by Ntoe Ase Ekong Esu who deforested the land and settled it.
6. The Defendants avers further that the people of EkpriObio Abakpa (also known as Abakpa Efio Ase) migrated from Big Qua and settled at Eyo Edem but Ntoe Ase Ekong Esu left Eyo Edem in Calabar in company of Obong Efio Essien Akamba who is from Ikot NkokAme and settled at Ekpri Obio Abakpa village. While his friend ObongEfio Essien Akamba founded and settled in Ikot NkokAnie village.
13. The

Defendants deny paragraph 6 of the Statement of Claim except that Ase Ekong family is the only family in Ekpri Obio Abakpa and all true indigenes of the village trace their origin to that family. Membership of the village council is reserved for true indigenes of the village.

He submitted that the Appellants were in effect asserting that the land of Ekpri Obio Abakpa village is owned exclusively by their Ase Ekong Family, while the Respondents were asserting that the land is owned communally by the five principal families in that village. He referred to the case of OBU v. OKIGWE (2018) LPELR – 43938 (CA) @ 22-23 paras D-A where this Court held per Bolaji-Yusuff J.C.A., that:
The law is settled that where a Plaintiff leads evidence to show that a land in dispute is a communal land as the Respondents did, the onus shifts on the individual family or quarters who claims the land to prove by cogent and credible evidence that the land belongs to them exclusively.
He further referred to the cases of UDEZE v. CHIDEBE (1990) 1NWLR (Pt. 125) 141 @ 158 paras G-H and ONOWHOSA v. ODIUZOU (1999) 1 SCNJ 13 @ 32 lines 29-31.

The learned trial judge,

said counsel, consequently held, and correctly so, that the onus was on the Appellants to prove that their Ase Ekong Family was the sole owner of Ekpri Obio Abakpa land to the exclusion of all other families in the village (page 354 of the Record). The Appellants’ submission that the onus of proof was on the Respondent is in the circumstance untenable. He referred to the case ofOHIARA v. OHIARA (2003) FWLR (Pt. 177) 955 @ 964 paras B-C, where this Court held, per Nsofor J.C.A., that:
The onus or burden is usually on the person or persons who assert exclusive possession or ownership as against communal ownership to prove it. The presumption is a residuary and nagging vestige of our traditional conception of land ownership. From ancient times land was customarily conceived as belonging to a community not to individual…. So, where an individual or a group of individuals asserts exclusive ownership as against a community’s claim of communal ownership, the law is that the onus is on the individual or group of individuals to prove exclusive ownership…

Learned counsel for the Respondents submitted that the Appellants tried to discharge

the onus of proving that Ekpri obio Abakpa land is owned exclusively by their Ase Ekong family by relying on traditional history. However, that in AKANBI v. SALAWU (2003) FWLR (Pt. 178) 1066 @ 1074 para D, the Supreme Court reiterated that:
….to rely on traditional history, a party must be familiar with the substance of that history, and he must in practical terms do this by pleading the name of the ancestor who founded the land and the names of those after him to whom the land devolved up to the last successor or successors.

In this case, said counsel, the Appellants merely averred in paragraphs 5 and 6 of their Further Amended Statement of Defence that Ekpri Obio Abkpa land was founded by Ntoe Ase Ekong Esu through original deforestation and settlement; but throughout their pleadings and evidence in this case, the Appellants did not state how Ekpri Obio Abakpa land devolved from the alleged founder to the Appellants to the exclusion of all other families in the village.

Also, that in ELIAS v. OMO-BARE (1982) ALL NLR 75 @ 92, there was a similar failure by a party relying on traditional history to plead how a land in dispute devolved

exclusively to his family, and in that case the Supreme Court held per Obaseki J.S.C., that:
This Court has not spared its breath of recent… in all appeals on land matters involving a claim for declaration of title to restate the principle of law that for a plaintiff to succeed in such a claim there must be credible evidence … establishing the origin and devolution of title down to the Plaintiff. Where the evidence is unsatisfactory as the … origin and devolution of title as has been the case in this appeal the claim must fail.

Again, that in PIARO V. TENALO (1976) NSCC 700 @ 705-706 where there was a similar absence of evidence on how a land in dispute devolved from the alleged founder to the Claimant, the Supreme Court held per Obaseki J.S.C., that:
We find however in the pleadings and the evidence a total absence of facts about the founding of Bomu village in general and Kporo land in dispute in particular… and the persons who have held title or on whom title devolved in respect of the land since the founding before the 1st Plaintiff/Respondent acquired control… All these facts which are necessary for proper

determination of the issue raised … leaves the traditional evidence in the air and it is fatal to Plaintiff’s claim.

Still on this, he also referred to the case of ACHIAKPA v. NDUKA (2001) FWLR (Pt. 71) 1804 @ 1829 para A-D. He submitted that the Appellants have argued in paragraph 4.11 of the Appellant’s Brief that their pleading that land in dispute was founded by Ntoe Ase Ekong Esu was sufficient proof that the land devolved on his descendants, who are members of the Appellants’ Ase Ekong family. However, that in OYEKAN v. OYEWALE (2012) All FWLR (Pt. 623) 1991@ 2006 para D-H a similar argument was rejected by this Court. In that case this Court held, per Fasanmi J.C.A., that:
The Respondents who were the Plaintiffs at the trial Court through PW1 stated that Ope-Agbe was the founder … PW4 states in his examination in chief thus: “the children of Ope-Agbe inherited the land after his death. The land has been passing from generation to generation. It is the head of the family who always takes charge”. The pertinent questions would be: who are the so-called generations referred to and who were the heads of

family? … Respondents failed to prove the particulars of the intervening owners through whom he claims in their evidence. Want of such evidence in the case of the Respondents’ assertion created a mysterious gap which is fatal to the Respondents’ case.

Learned Senior Counsel for the Respondents submitted that in this case therefore, the absence of any pleading or evidence from the Appellants on the generations of family heads or village heads who have managed Ekpri Obio Abakpa land as the exclusive property of Ase Ekong family, left a mysterious gap in the Appellants’ traditional history which was fatal to their case that Ekpri Obio Abakpa land is owned exclusively by their Ase Ekong family, and not communally by the five families who have settled, lived and farmed on the land.

He also submitted that unlike the Appellants whose traditional history was marred by mysterious gaps, the Respondents’ traditional history did not have such flaws. The Respondents’ traditional history was given by PW1 in paragraphs6 to 14 of his Statement on Oath (at pages 17-18 of the Record) and by PW2 in paragraphs 7 to13 of his Statement

on Oath (at pages 22-23 of the Record). The witnesses stated that Ekpri Obio Abakpa was founded through original deforestation and settlement by a group of Qua people led by one Okpo Abimba. That from the founding of the land until the current dispute, the land has been managed as a communal land by the village head acting in collaboration with a Village Council consisting of the representatives of the five principal families in the village. That since the land is communal, the village heads on whom the management of the village land devolved were from the five principal families in the village. The names of the village heads and their families from the founding of the land to the present day were also given by the witnesses.

He submitted that the learned trial judge weighed the evidence of the Respondents’ witnesses against that of the Appellants’ witnesses and he concluded (at page 354 of the Record) as follows:
It is my view that whereas the Claimants (now Respondents) witnesses’ evidence, supported by some exhibits earlier listed in this judgment, has not been discredited under cross-examination, that of the

Defendants/Counter-claimants (now Appellants) is not the same as it was battered under cross-examination.

He submitted that this finding by the learned trial judge cannot be faulted. That in EZE v. ATASIE (2000) 79 LRCN 1998 @2013 paras D-H, the Supreme Court held, per Uwaifo J.S.C., that a traditional history evidence can only be challenged by the adverse party giving an alternative version of the traditional history that contains all the requisite elements of credibility, to wit who founded the land, how it was founded and how the land devolved from the founder to the Claimant. In this case, said counsel, the Appellants were unable to give an alternative traditional history with the requisite elements of credibility to debunk the one given by the Respondents. He said in the circumstance, the learned trial judge was perfectly right to believe as un-discredited the version of traditional history given by the Respondents.

Moreover, said counsel, as the learned trial judge rightly pointed out, the Respondents’ traditional history was corroborated by some of the documents as exhibits in this case. Exhibit 1 is a Public Notice which was issued as

far back as the 21st of August, 1970. The Public Notice states that there are five principal families in Ekpri Obio Abakpa village, and that the consent of those five families is necessary for the selection of a village head in Ekpri Obio Abakpa. Exhibits 5, 6, 7 and 8 are protest letters written by the family heads off us out of the five principal families in Ekpri Obio Abakpa village against the conduct of the Appellants’ Ase Ekong family. Those letters according to counsel debunked the argument in paragraph 4.9 of the Appellants’ Brief that there was no evidence in this case of the existence of Okpo Abimba and Edim Nya families and their family heads in Ekpri Obio Abakpa village. The other three families in the village are the Appellant’s Ase Ekong family; the 1st Respondent’s Ada Itu (aka Asuquo Ita) family; and the 2nd Respondent’sNyam Abasi Iso family.

Learned Senior Counsel for the Respondents submitted further that the Respondents’ traditional history was equally supported by Exhibit 14, a letter written as far back as the 21st of May,1959, by the then Secretary of Akpabuyo District Council to “the Village

Head, Chief Bassey Mkpanam of Ekpri Obio Abakpa”. Exhibit 14 provided documentary proof that Chief Bassey Mkpanam from Okpo Abimba family was a village head in Ekpri Obio Abakpa village, contrary to the pleading and evidence of the Appellants’ witnesses that Chief Bassey Mkpanam was not an indigene of, or a village head in, Ekpri Obio Abakpa. The very fact that members of families, other than the Appellants’ Ase Ekong family, were at different times village heads and trustees of the village land is clear proof that Ekpri Obio Abakpa land is communal to the five families in the village, and that it is not the exclusive property of the Appellants’ family.

He submitted that this fact was further buttressed by Exhibits 23 and 24,which are Court processes in Suit Nos. MC/MSC/284/99 and CV/79/99, where the 1st Respondent, along with the 1st and 2nd Appellants, were named as the joint representatives of Ekpri Obio Abakpa village in a lawsuit against a neighbouring village for trespass on the village communal land. Obviously, said counsel, the 1st Respondent would not have been eligible to represent Ekpri Obio Abakpa village in those cases

if he was not an indigene of the village and a principal member of the Village Council. He added that the Appellants’ argument that he 1st Respondent was named as a co-plaintiff in those cases because he was a tenant on Ekpri Obio Abakpa land was rightly rejected by the learned trial judge because in the Court processes, it is not stated anywhere that the 1st Respondent was a tenant on Ekpri Obio Abakpa land. That what is stated in the Court processes is that the 1st Respondent was a representative of Ekpri Obio Abakpa village in those cases.

Learned Senior Counsel for the Respondents also submitted that the Appellants’ contention that the 1st Respondent and members of his Ada Itu (aka Asuquo Ita) family are mere settlers and non-indigenes in Ekpri Obio Abakpa village was further debunked through Exhibit 11, which is the 2010 calendar of the Qua Clans Constituted Assembly (QCCA)- the apex traditional body for all Qua people. Exhibit 11 contains pictures of the representatives of different communities in the QCCA, and the 1st Claimant’s picture is shown in Exhibit 11 as the representative of “Imona Mfam Akin”, (aka Ekpri Obio

Abakpa village). Obviously, said counsel, the 1st Respondent would not have been eligible to represent Ekpri Obio Abakpa village in the Qua Clans Constituted Assembly if he was not a Qua indigene of Ekpri Obio Abakpa village and a principal member of that village.

He argued that in paragraphs 4.20 and 4.21 of the Appellants’ Brief, they have made heavy weather of Exhibit 21. According to the Appellants, Exhibit 21 is an admission by the Respondents that the Appellants’ Ase Ekong family is the only family in Ekpri Obio Abakpa village. Actually, said counsel, Exhibit 21 is an agreement for the lease of an oil palm plantation in Ekpri Obio Abakpa village. The 1st Respondent was the Lessee and Ekpri Obio Abkpa was the Lessor. In the recital to Exhibit 21, the Lessors were described as “… members of Ekpri Obio Abakpa Village Council who are … custodians of the assets and values of the entire village”. He submitted that if the Appellants’ family was the Lessor and the owner of the demised oil palm plantation, the Lessors would have been described in Exhibit 21 as the family head and principal members of the

Appellants’ Ase Ekong family. The description of the Lessors in Exhibit 21 as the “Village Council ”who are “custodians of the assets and values of the “entire village” is further proof that Ekpri Obio Abakpa land is communally owned by “the entire village” and not exclusively owned by the Appellants’ family. The Appellants attempt, said counsel, to read into Exhibit 21 an admission of the Appellants’ title by the Respondents is therefore untenable.

Respondents’ counsel submitted it is trite law that civil cases are determined on the preponderance of evidence. That in this case the preponderance of evidence is clearly in favour of the Respondents’ case that Ekpri Obio Abakpa land is owned communally. In the circumstance, said counsel, the learned trial judge was right to dismiss the Appellants’ counter-claims, which were to the effect that the village land is owned exclusively by the Appellants’ family. That the learned judge was equally right when he granted the Respondents’ claims for declarations that they are five principal families in Ekpri Obio Abakpa village

and that those five families are entitled to an equal share, interest and say in the management of the communal land. He added that the learned trial judge was also right when he ordered the Appellants and their family to render an account of the proceeds from all sales and leases of the communal land done by the Appellants without the consent of the other families in the village.

Learned Senior Counsel for the Respondents submitted that in paragraph 4.26 of the Appellants’ Brief, it has been argued that the learned trial judge erred in ordering the Appellants to render an account of the proceeds from their alienation of the communal land because no evidence was given as to the amount realized by the Appellants from the alienation of the communal land. But submitted that the claim for an account was made precisely because the Respondents did not know how much the Appellants had earned from the unilateral alienation of the communal land. He referred to the case of MESSRS MISR (NIGERIA) LTD. v. IBRAHIM (1974) NSCC (Vol. 9) 291 @ 294 lines 24-29 where the Supreme Court held, per Coker J.S.C. that:
An action for account lies in respect of a claim

which may be unascertained at the time of the institution of the proceedings and indeed can only be ascertained after the filing of such an account. If the Plaintiff’s claim against the Defendant is indeed ascertained, we are at a loss to see why such a Plaintiff may not claim from the Defendant such an ascertained amount.
He also referred on this to the case of GODWIN v. THE CHRIST APOSTOLIC CHURCH (1998) LPELR- 1327 (SC) 27-28 paras E-D.

He further submitted that at the trial Court, there was no dispute over the fact that the Appellants had alienated communal land without the consent of the other families. This fact, said counsel, is apparent from the averment in paragraphs 13 and 28 of the Further Amended Statement of Defence where the Appellants averred as follows:
13.… Ase Ekong is the only family in Ekpri Obio Abakpa and all true indigenes of the village trace their origin to that family. Membership of the Village Council is reserved for the true indigenes of the village
28. … a well constituted Village Council leased the village land to interested people to build houses and live, the first claimant not being an

indigene of the village cannot be consulted for this purpose.

He reasoned that by the averments above, the Appellants admitted that the village land was alienated only by the Ase Ekong family members. He concluded that the learned trial judge was perfectly right to order the Appellants to render an account of the proceeds from those alienations in view of his finding that there were four other families in the village with lawful interest in the village land.

In his Reply Brief, learned counsel for the Appellants re-echoed that the Respondents failed to appreciate the point that in an action for declaration of title based on communal ownership, there is need for the Plaintiff to plead facts showing how the land in question became communal property and also that the identity of the communal ancestor ought to be established.

On this, learned counsel for the Appellants referred to the cases of ECHI v. NNAMANI (2000) 5 S.C. 62 @ 78 and OGUNFAOLU v. ADEGBITE (1990) 7 SCNJ 111. He repeated that it is glaring that the learned trial judge relied on documentary evidence and not traditional history to enter judgment for the Respondents.

He submitted

that if the Respondents had indeed relied on traditional evidence, it was insufficient to prove their case without corroboration. He referred to the cases of OYEDIRAN v. ALEBIOSU (1992) 7SCNJ187 @ pp. 193-194; SEKONI v. OGUNMOLA (2003) 22 WRN 154. He added, relying on the case of AYINKA v. MAKINDE (2002) 24 NRN 1 (Pt. 134) that the Respondents who placed so much reliance on traditional history did not lead evidence to support control of the village by any of the four alleged families during their tenure as alleged village heads of Ekpri Obio Abakpa village.

RESOLUTION OF ISSUES NOS. 1 AND 2
In this appeal, learned counsel for the Appellants kept emphasizing and demonstrating that the pleading and evidence of traditional history by the Respondents was not sufficient to shift the burden of proof to the Appellants that the land of Ekpri Obio Abakpa village belong to the Appellants’ Asekong family to the exclusion of other families who now claim that the village is owned by five families, including the Asekong family.

It is convenient to start this enquiry from the pleadings of the parties. The Respondents as Claimants allege in paragraphs 4

to 7 of their Further Amended Statement of Claim that Ekpri Obio Abakpa (or Small Qua Town) was founded by a group of Qua people led by one Okpo Abimba who migrated from Big Qua Town (or Akwa Obio Abakpa) and Akim Qua Town. That the migrant group deforested and settled in after which five principal families evolved to administer the village through a village council consisting of family heads and representatives of the five principal families.

The Appellants Defendants largely denied the Respondents traditional history and presented yet another which favoured the idea that Ekpri Obio Abakpa village solely belongs to the descendants of their alleged founder NTOE ASE EKONG ESU.

In all of these, it is interesting to draw inferences from a comparison of paragraphs 6 and 7 more especially of the Respondents Statement of Claim with paragraphs 13 and 14 of the Appellants Statement of Defence. For ease of reference, paragraphs 6 and 7 of the Respondents Statement of Claim read as follows:
6.The Claimant avers that the five principal families mentioned above have equal rights and status in Ekpri Obio Abakpa village and as such the village head of Ekpri

Obio Abakpa from the founding of the village and up to the present day is always from one of those five principal families and those village heads from the founding of the village till date are as follows – Okpo Abimba from Okpo Abimba family, followed by Edim Nya from Edim Nya family, then MbeEfa from Nyam Abasi Iso family, then Okon Ekpo Nsa from Edim Nya family, then Atim Etim Butt from Edim Nya family, then Okon Efio Ase from Asekon family, then Asuquo Efa from Nyam Abasi Iso family, then Asuquo Ita from Ada Itu family, then Bassey Mkpanam from Okpo Abimba family, then Abasi Asuquo Ita from Ada Itu family, then the 1st Defendant, Ase Okon Effiom, from Asekon family.
7.The family heads and representatives of the five principal families constitute the Ekpri Obio Abakpa Village Council which is vested with the management of the village communal land and resources in conjunction with the Village Head. The proceeds from the management of such communal resources (e.g. monies realized from the sale of village timber or lease of the village land or oil palms) are usually shared equally among the five families or applied to a communal project agreed on by all

the five families.

Specifically, the Defendants Appellants reaction to Respondents’ paragraphs 6 and 7 would be found in paragraphs 13 and 14 of the Statement of Defence thus:
13.The Defendants deny paragraph 6 of the Statement of Claim except that ASE EKONG FAMILY is the only family in Ekpri Obio Abakpa and all true indigenes of the village trace their origin to that family. Membership of the village council is reserved for the true indigene of the village.
14.Paragraph 7 of the Statement of Claim is denied as the resources of the village have not at any time been shared on family basis or shared at all but used to develop the village.

By these averments, it would be found that there is nothing in paragraphs 13 and 14 of the Appellants Statement of Defence that specifically traversed the Respondents assertion in paragraph 6 of the Statement of Claim that “… from the founding of the village and up to the present day is always from one of those five principal families and those village heads from the founding of the village till date are as follows…”

Paragraph 13 of the Appellants Statement of Defence is

therefore an evasive or insufficient traverse of the averment in paragraph 6 of the Respondents Statement of Claim. As a matter of law, an averment in a party’s pleadings is deemed to have been admitted if not specifically denied or traversed. In fact, a Plaintiff’s averment of facts must be met by the Defendant frontally and categorically. Once a Plaintiff’s averment is not met directly, the Defendant is taken to have admitted it. See OTTO v. MABAMIJE (2004) 17 NWLR (Pt. 903) 489; BRITISH AIRWAYS v. MAKANJUOLA (1993) 8 NWLR (Pt. 311) 276; N.B.C. PLC. V. OLAREWAJU (2007) 5NWLR (Pt. 1027) 255.

Relatedly, paragraph 14 of the Appellants’ Statement of Defence is at par with paragraph 7 of the Respondents Statement of Claim to the effect that the resources of the village are “… applied to a communal project agreed on by all the five families…” or “… but used to develop the village”.
The larger effect of these averments in the pleadings of the parties is that the Appellants in fact did not traverse the core of the Respondents Claimants case that Ekpri Obio Abakpa village belongs to a

community of five families, with a village council consisting of members and or representatives of the families.
From this time on in the pleadings and evidence of the parties, the burden of proving that Ekpri Obio Abakpa village belongs exclusively to the Appellants Ase Ekong family shifted to the Appellants.
By the lack of traverse of Respondents paragraphs 6 and 7 of Statement of claim by the Appellants, the Respondents have shown prima facie that the land in question became communal property and also the identity of the communal ancestor as expressed in the case of ECHI v. NNAMANI (2000) 5 SC 62 @ 78.
In the instant case, it was truly left for the Appellants who alleged exclusive ownership of Ekpri Obio Abakpa to lead evidence that the land belongs to them exclusively. See OBU v. OKIGWE (2018) LPELR – 43938 (CA); UDEZE v. CHIDEBE (1990) 1 NWLR (Pt. 125) 141 @ 158; ONOWHOSA v. ODIUZOU (1999) 1 SCNJ 13 @ 32.
In the case of OHIARA v. OHIARA (2003) FWLR (Pt. 177) 955 @ 964, NSOFOR J.C.A. speaking for the Court of Appeal put it tellingly as follows:
The onus or burden is usually on the person or persons who assert exclusive

possession or ownership as against communal ownership to prove it. The presumption is a residuary and nagging vestige of our traditional concept of land ownership. From ancient times, land was customarily conceived as belonging to a community not to individual … So, where an individual or a group of individuals asserts exclusive ownership as against a community’s claim of communal ownership, the law is that the onus is on the individual or group of individuals to prove exclusive ownership…”
In the instant case, beyond the unjustified allegation by the Appellants that the learned trial judge only used documentary evidence without oral evidence to tilt the case in favour of the Respondents, the bigger question is whether from the pleadings and evidence, the Appellants were able to prove that their Asekong family exclusively owns Ekpri Obio Abakpa land. My answer would be in the negative.
This is because in this case as rightly pointed out by the learned Senior Counsel for the Respondents, the Appellants merely averred in paragraphs 5 and 6 of their Further Amended Statement of Defence that Ekpri Obio Abakpa land was founded by

Ntoe Ase Ekong Esu through original deforestation and settlement; but that throughout their pleadings and evidence, the Appellants did not state how Ekpri Obio Abakpa land devolved from the alleged founder to the Appellants to the exclusion of all other families in the village.
It was thus not the case as alleged by the Appellants that the learned trial judge favoured the Respondents by relying on documentary evidence which had no links or roots in the oral evidence of the parties. Indeed, dismissal of Appellants counterclaim was based on failure of traditional history and failure of burden of proof.
It is trite that a Plaintiff such as the Appellants Counter Claimants in the instant case who claims a declaration of title to land has the burden of setting out clearly by who and how the land was founded and the names of persons who had exercised acts of ownership on the land before it devolved upon him. See OLOKOTINTIN v. SARUMI (2002) 13 NWLR (Pt. 784) 307 SC; IBIKUNLE v. LAWANI (2007) 3 NWLR (Pt. 1022) 580 (CA); OKOKO v. DAKOLO (2006) 14 NWLR (Pt. 1000) 401 SC.
In this regard, the evidence tendered must not only make consistent sense but must

also link the party relying on it affirmatively with the traditional history relied upon. See OWOADE v. OMITOLA (1988) 2NWLR (Pt. 77) p. 413. Clearly, in the instant case, by pleadings and evidence, the Appellants failed to show the persons on whom the title in respect of the land evolved since its founding. See ALADE v. AWO (1975) 4 S.C. 215; PIARO v. TENALO (1976) 12 S.C. 31; KALIO v. WOLUCHEM (1985) 1 NWLR (Pt. 4) p.616.
The fact of recognition that the traditional history of the Respondents Claimants weighed over and above that of the Appellants Defendants appeared in the judgment of the learned trial judge when he held at page354 of the Record of Appeal that:
Therefore, in law, he who asserts must prove. Here since Defendants/Counter claimants claims that the Community (Ekpri Obio Abakpa) only has a single family to the exclusion of the others, it is their duty/burden to so proof. See Section 131(1) and 132 of the Evidence Act, 2011 and YUSUF v. ADEGOKE & ANOR (2007) LPELR 0 4SC (Pt. 1) 126 @ 129-140. The question then is if on the preponderance of evidence, the burden has been discharged on account of evidence of DW1 and DW3 without

independent corroboration, may be from the Qua Clan Council for which by virtue of Exhibit 11, (Ekpri Obio Abakpa) is said to be part of that clan. The answer in my view is in the negative.
Furthermore, it is my view that whereas Claimants witnesses evidence supported by some Exhibit earlier listed in this judgment has not been materially discredited under cross examination, that if the Defendants/Counter Claimants is not the same (as it was battered under cross examination).
In the final analysis, what I have been labouring to say is that based on the preponderance of evidence, Claimants have proved their case and are entitled to the judgment of this Court, while the Counter Claim fails for lack of merit.
In deciding issues Nos.1 and 2 and as recognised by the learned trial judge the parties to the case threw up several other issues which were not directly germane to the substance of the case which was the need for the Appellants to prove exclusive ownership of Ekpri Obio Abakpa land.

In the process, the Respondents tendered sundry documents including Exhibits 1, 5, 6, 7, 8, 11, 14, 21, 23 and 24, ALL of which provide snippets of

corroborative evidence in further support of the Respondents case that Ekpri Obio Abakpa village is owned by five families including the Appellants Asekong family, but do not belong exclusively to the Appellants Asekong family.

Whereas as in the instant case, the Plaintiff and the Defendant anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the trial Court is to weigh their evidence on the imaginary scale and determine which evidence of the two is weightier. See OKOKO v. DAKOLO (2006) 14NWLR (Pt. 1000) 401; IBIKUNLE v. LAWANI (2007) 3NWLR (Pt. 1022) 580.

Finally, and in all the circumstances of the case especially admissions by the Appellants as contained in paragraphs 13 and 28 of the Further Amended Statement of Defence, the learned trial judge was not wrong to have ordered the Appellants to render account. This is precisely for the reason that the Respondents are not able to ascertain amount realized by the Appellants from the alienation of communal land until such accounts are rendered. See GODWIN v. THE CHRIST APOSTOLIC CHURCH (1998) LPELR – 1327 (SC) 27-28; MESSERS MISR (NIGERIA) LTD. v. IBRAHIM

(1974) NSCC Vol. 9 291 @ 294.

It is therefore the case in terms of Appellants Issue No.1 that the Respondents Claimants established their case that there were/are five families in Ekpri Obio Abakpa village upon the preponderance of evidence.

And in terms of Appellants Issue No. 2, that upon the pleadings, and evidence of the parties that the Appellants Counter Claimants could not succeed on their Counter-claim.
Issues Nos. 1 and 2 are accordingly resolved against the Appellants.

This appeal lacks merit and it is accordingly dismissed.
N30,000.00 costs is awarded to the Respondents against the Appellants.

HAMMA AKAWU BARKA, J.C.A.: I had the singular opportunity of reading in draft the judgment just delivered by my Learned brother, MOJEED ADEKUNLE OWOADE, J.C.A.

I agree with the resolution of the two issues as well as the conclusion reached.
I also agree that the appeal be dismissed for lack of merit.
I also agree that costs of N30,000.00 only be awarded to the Respondents.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had privilege of reading in draft the judgment just read by my learned brother,

MOJEED ADEKUNLE OWOADE, J.C.A. and I agree with the reasoning contained therein and the conclusion arrived thereat.
I find the appeal lacking in merit and same is accordingly dismissed.
I abide by the consequential orders contained in the lead judgment including the order as to costs.

Appearances:

A. ANNAH, ESQ. For Appellant(s)

ESSIEN H. ANDREW, SAN. with him, D. ARCHIBONG, Esq. For Respondent(s)