ELDER/CHIEF OKON NYONG OKON & ORS v. OKON EKPO ESSIEN BASSEY (2019)

ELDER/CHIEF OKON NYONG OKON & ORS v. OKON EKPO ESSIEN BASSEY

(2019)LCN/13080(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/C/466/2014

RATIO

LAND LAW: A PARTY PLEADING TRADITIONAL HISTORY MUST PLEAD HIS ROOT OF TITLE

This is because a party relying on evidence of traditional history must plead his root of title. Not only that, he must show in his pleadings who those ancestors of his were and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail. Also, where a person traces the root of his title to a person or family he must establish how that person or family also came to have title vested in him or it. See IBIKUNLE v LAWANI [2007] 3 NWLR [Pt. 1022] 580; OKORO v DAKOLO [2006] 14 NWLR [Pt. 1000] 401 SC; BENJAMIN- N. IRO AGBARA v DAVID UFOMADE [2009] 5 – 6 SC [Pt. 1] 83.PER MOJEED ADEKUNLE OWOADE, J.C.A.

ABANDONMENT: THE RATIONALE FOR THE CONCEPT OF ABANDONMENT

The rationale for the concept of abandonment of pleadings is that parties are strictly bound by their pleadings and they are not allowed to make a case that is at variance with their pleadings. Just as it is not open to a Court to violate the pleadings of the parties and make a case for them contrary to their pleadings. See BUHARI v OBASANJO [2005] 13 NWLR [Pt. 941] 1 SC; ITO v EKPE [2000] 2 SC 98; MAKINDE v AKINWALE [2000] 1 SC 89; ADELEKE v IYANDA [2001] 13 NWLR [Pt. 729] 1 SC; ADENIRAN v ALAO [2001] 18 NWLR [Pt. 745] 361 SC.PER MOJEED ADEKUNLE OWOADE, J.C.A.

LAND LAW: WHAT PLAINTIFF MUST PROVE WHEN CLAIMING ABANDONMENT IN DECLARATION OF TITLE

Before and beyond the principle of abandonment in pleading, in a claim for declaration of title, the plaintiff is expected to narrate the genealogical tree from the original owner, the ancestor, in generations appurtenant to him, down the line to the plaintiff. In other words, he must prove who founded the land, in what matter the land was founded and the circumstances leading to it, and the successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained. SeeODI v IYALA [2004] 8 NWLR [Pt. 875] 282 SC; EZINWA v AGU [2004] 3 NWLR [Pt. 861] 431; EWO v ANI [2004] 3 NWLR [Pt. 861] 610 SC; IRAWO v ADEDOKUN [2005] 1 NWLR [Pt. 906] 199.PER MOJEED ADEKUNLE OWOADE, J.C.A.

DECLARATION OF TITLE TO LAND: WHAT A CLAIMANT WHO CLAIMS TRADITIONAL HISTORY MUST PROVE AND WHAT HAPPENS WHEN HE FAILS TO PROVE

Relatedly, where as in the instant case, a claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn around to rely on acts of ownership and possession to prove his title to the land. As a matter of course, there would be nothing on which to found acts of ownership. In such a case, the Court is obliged to dismiss the claimants claim. Similarly, where a defendant to a claim for title to land fails to prove his root of title by traditional history as pleaded, his defence to the claim would fail. See OYADARE v KEJI [2005] 7 NWLR [Pt. 925] 571 SC.PER MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

1. ELDER/CHIEF OKON NYONG OKON
2. CHIEF OKON NYA OKON
3. NYONG ESSIEN NYONG
(for and on behalf of Obong Okon Ekpo Essien Family of Usung Esuk village) Appellant(s)

AND

OKON EKPO ESSIEN BASSEY Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of B. T. Ebuta, J. of the High Court of Justice, Calabar, delivered on 25/6/2012.

The Appellants as claimants issued a writ of summons accompanied by a statement of claim on 20-10-2010 and paragraph 12 of the said statement of claim says:
?(12) The claimants have suffered damages and claim against the defendant as follows:
a) A declaration that the claimants are entitle (sic) to the customary right of occupancy in respect of the land and farm settlement known as Obot Idim Okon Ekpo farmland in Ekim/Uyi Clan, Odukpani Local Government Area.
b) An order of injunction restraining the defendant by himself, his agents, assigns or servants from further interfering, entering upon or dealing with the land in dispute in any manner whatsoever without the consent of the claimants.
c) N25 million damages for trespass.

The Respondents as defendants filed a Statement of Defence and in its paragraph 14 counter claimed as follows:

?14? The Defendant repeats the averment in the above statement of defence and states further that the claimants by their act trespassed into the Defendant?s family land has suffered damages and claims as follows:
(i) A declaration that the land in dispute known by both parties and is known as Obon Essien Okon Essien Anwambang is the property of the defendant?s direct family of Chief Essien Bassey Essien and he is entitled to a customary right of occupancy of the said land.
(ii) The sum of N5,000,000.00 [Five Million Naira] damages for trespass.
(iii) Perpetual injunction restraining the claimants servants, privies and agents (sic) from further act of trespass on the land or to do anything that is inconsistent with the defendant?s right over land.

By paragraph 3 of the claimants Appellants statement of claim, they aver that ?the Claimants became the bonafide owners of the land by way of traditional occupation. Since then the claimants family have been in undisturbed possession, occupation, enjoyment and sale of the resources of this parcel of farmland for centuries without any encumbrances or interference from anybody.”

However by the evidence of PW1 Nyong Essien Nyong and PW2 Ayi Etim Ekpenyong, the claimants Appellants contend they came upon the land through the original owner Etinyan Ibitam who allotted this portion of land to Obong Okon Ekpo Essien the grandfather of the claimants due to his assistance to the said Obong during the period of the deforestation of the land in dispute.

On the other hand, the Respondent stated that his grandfather obtained the land from Eyibio Oboi from Akwa Ekim in Ekim Uyi Clan by purchase. That his grandmother called on the father of the claimants to manage the land on her behalf because the father was a minor. The father of the claimant changed the name of the land from Obong Essien Okon Essien Anwambang to Obot Idim Obong Essien Okon Essien land. Thereafter, his grandmother objected and the management of the land was returned to defendant?s father who had then matured. He also tendered Exhibits 5 and 6 which were awards of customary arbitrations in his favour over the land in dispute.
?
The learned trial Judge considered the evidence adduced by the parties and held that the

claimants Appellants abandoned their claim to ownership of the land by traditional occupation and that there was therefore no evidence as to how the claimants Appellants came to own the land. That having abandoned their pleaded root of title, the claimants are trespassers on the land and failed to prove better title. Also, that the Defendants customary awards are sufficient to prove title to the property. And, that the evidence of the Defendant?s witnesses as to boundary neighbours and possession was not materially challenged.
He accordingly entered judgment in favour of the Defendant counter claimant.

Dissatisfied with the judgment, the Appellants filed a Notice of Appeal containing four grounds of appeal in this court on 12 ? 8- 2014.

The relevant briefs of Argument are the Appellants brief of Argument filed on 24/11/2015 and deemed filed on 18/01/2017. It is settled by Ukpong Eba, Esq. The Respondent?s brief of Argument filed on 6/4/2015 was settled by Chief F. O. Onyebueke, Esq.

Learned counsel for the Appellants nominated only one issue for determination of the appeal. It is,

Whether the learned trial Judge failed to properly evaluate the evidence before him and whether such failure adversely affected the decision arrived at and thus occasioning a miscarriage of justice. [Grounds 1-4].
The Appellants sole issue was adopted by the Respondent.

Learned counsel for the Appellants reiterated the facts of the case and the decision of the learned trial judge. He submitted that a trial Court faced with two competing evidence of parties in a case before it has a primary duty to consider the evidence led by the plaintiff and the defence and put both sides of the evidence on an imaginary scale, weigh them and decide upon the preponderance of evidence which has more weight.

He submitted that in this case, the trial Court decided the issue only after looking at the evidence of the defence without considering the evidence of the claimants. The law, said counsel is that a trial Court must base its consideration on the evidence of the parties led before it. The Court must thereafter show how and why he came to his findings and final determination.
?

He referred to the cases of MOGAJI v ODOFIN [1978] SC 91; GARUBA v KADIRI [2009] 35 WRN 106 @ 126 and OYEWOLE v AKANDE [2009] 38 WRN 7 22 ? 28. He submitted that the evidence of CW 11 Ayi Etim Ekpenyong which was not challenged ought to have been accepted. He referred on this to the cases of BELLO v EWEKA [1981] 1 SC 101; NACENN (NIG) LTD. v BEWAC AUTO PRODUCERS LTD. [2011] Vol. 27 WRN 7.

He furthered that in the process of evaluation of evidence by the trial Court, the Court must have regard to the following:
a) Admissibility of evidence
b) Relevancy of the evidence
c) Credibility of the evidence
d) Conclusion of the evidence
e) Probability of the evidence of one party more than the other.
He referred to the case ofAKIBU v OPALEYE [1974] 11 SC 189, and again to the case of OYEWOLE v AKANDE [2009] 38 WRN 28 and submitted that the learned trial judge did not view any of the above criteria but surprisingly held that the claimants [Appellants] abandoned their claim of ownership of the land by traditional occupation as stated by PW1 in his evidence.

Appellants counsel referred to the 6th Edition of the Blacks Law Dictionary page 2 as well as the case of

Chief Saro Mansion & Ors. v Halliburton Energy Services Nig. Ltd [2007] 2 NWLR [Pt. 1018] 211; UCHECHUKWU v BIELONWU [2008] 44 WRN 144 to define ?Abandon? and submitted that the claimants [Appellants] did not abandon their claim of the land by traditional occupation from the evidence of CW1 and CW II.

He repeated his submission that the learned trial Judge did not properly evaluate the evidence of the parties and referred to the cases of NEPA v OSOSANYA [2004] 12 WRN 21 ? 22 and AGBOMEJI v BAKARE [1998] 9 NWLR [Pt. 564] in declaring that the judgment appealed against was perverse. He added that it is trite law that where a trial Court fails in its duty to properly consider the evidence before it and the failure had led to the drawing of wrong conclusion, the appeal Court has been perfectly justified in re-evaluating and reconsidering the whole evidence in order to arrive at a just decision.

He referred to the case of ASANIKE v AKINLEYE [2014] Vol. 6 WRN pg. 133 and urged us to re-evaluate the evidence of CW II Ayi Ekpenyong and enter judgment in favour of the Appellants. He referred to the case of AGALA v OKUSIN

[2010] 4 [Pt. 11] MJSC 5 @ 6 and submitted that Exhibits 5 and 6 the Customary Arbitration Award can only be binding on the Appellants as claimants if only the following conditions had been proved by the Respondent who relied on it:
a) That there must have been a voluntary submission of the dispute by the parties to the non-judicial body.
b) The parties must have agreed to be bound by the decision of the non-judicial body as final.
c) That the decision was in accordance with the custom of the people or of their trade or business.
d) That the arbitrators reached a decision and published their awards.

He submitted that the claimants were not parties to Exhibits 5 and 6 and that none of the above highlighted requirements of Customary Arbitration were proved by the Respondents. He urged us to allow the appeal and enter judgment for the Appellants.

Learned counsel for the Respondent submitted that the question whether the Appellants abandoned their claim through traditional history would be found in a comparison of paragraph 3 of the Appellants Statement of Claim and the Statements on Oath of PW1 and PW2. That it was in

paragraph 3 of the statement of claim that the Appellants mentioned that they became the owner of the land by way of traditional occupation. But that the content of the statement on oath of both PW1 and PW2 did not pursue the line of traditional history as proof of root of title. Respondent?s counsel submitted that even the mention of Obong Effiong Ibitam of Usung Esuk village as original owner of the land did not cure the defect. Therefore, where evidence is not led in respect of pleading, such pleading is deemed abandoned.

He referred to the case ofADEKUNLE v ROCKVIEW HOTEL LTD. [2004] 1 NWLR [Pt. 853] 161 @ 178 ? 179 to say that a statement of claim or defence by a party with no evidence in its support at trial amounts to abandonment of the averment contained therein however cogent and the trial Court has no business considering those averments.

Respondents counsel submitted further that a plaintiff as in the instant case who claims a declaration of title to land but fails to discharge the burden of proving his root of title to the land pleaded by him cannot be entitled to the declaration sought. He

cannot also fall back on long possession and acts of ownership or long possession.

On this, counsel referred to the cases of AYORINDE v KUFORIJI [2007] 4 NWLR [Pt. 1024] 341 @ 368 and OWHONDA v EKPECHI [2003] 17 NWLR [Pt. 849] 326 @ 344 ? 345.

He submitted that even the abandoned pleading of the Appellants did not show how the Appellants got into the land by traditional occupation, as there must be unbroken chain as how the land got to them by traditional occupation. He urged us to hold that the trial Court properly evaluated the evidence before it and as the findings are not perverse, the appeal Court ought not to interfere.

He submitted further that there was no difference in the substance of the evidence of PW1 and PW2 that was not cross-examined as none of them gave evidence of an unbroken chain of traditional occupation of their title to the land in dispute. He referred on this to the cases of UZOR v BONIFACE ANYIKA & CO. LAGOS [NIG] LTD. [2002] FWLR [Pt. 107] 1312 @ 1354 and OMEREGBE v LAWANI [1980] 3 & 4 SC 108 that a Court must act, on uncontradicted evidence unless fraught with legal inhabitation.

And, that uncontradicted evidence to ground liability of a defendant must possess a character needed to show that the defendant had indeed committed the wrong.

He submitted that in the instant case, the evidence of PW1 and PW2 did not prove any form of title and required no cross-examination as a party cannot maintain boundaries of the land from time immemorial without proving valid title to land.

Learned counsel for the Respondent submitted that it is on record that the arbitration was between the father of the 1st Appellant and the father of the Respondent. That the arbitration binds the children, agents, successors and privies of the parties to the arbitration. He added that the arbitration as in Exhibit 5 and 6 complied with the principles in award of arbitration. He submitted that the Appellants predecessors did not dispute the arbitration award and that having failed to dispute the award when it was made, the parties herein could not dispute the award.

In deciding the only issue of evaluation of evidence in this appeal, it is necessary to set out the relevant paragraph of the Appellants Statement of Claim in contrast to the

relevant paragraphs of the Statements on Oath of PW1 and PW2 to see whether in fact the Appellants rely on traditional history or traditional occupation in support of their claim of ownership to the land in dispute and whether the evidence of PW1 and PW2 support such claims by the Appellants.
Paragraph 3 of the Appellants Statement of Claim states thus:
3. The claimants became the bonafide owners of the land by way of traditional occupation. Since then the claimants family have been in undisturbed possession, occupation, enjoyment and sale of the resources of this parcel of farmland for centuries without any encumbrances or interference from anybody.

The above pleading by the Appellants is vague enough and cannot sustain the Appellants reliance on traditional history/occupation even if it were supported by evidence. This is because a party relying on evidence of traditional history must plead his root of title. Not only that, he must show in his pleadings who those ancestors of his were and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail. Also, where a person

traces the root of his title to a person or family he must establish how that person or family also came to have title vested in him or it. See IBIKUNLE v LAWANI [2007] 3 NWLR [Pt. 1022] 580; OKORO v DAKOLO [2006] 14 NWLR [Pt. 1000] 401 SC; BENJAMIN- N. IRO AGBARA v DAVID UFOMADE [2009] 5 ? 6 SC [Pt. 1] 83.

Moreover, the Appellants case became worst confounded by the evidence in chief of PW1 and PW2 as contained in their respective witness?s statement on oath.

The PW1 stated in paragraphs 3, 6 and 7 of his statement of oath on pages 14 ? 15 of the Record of Appeal as follows:
3. That the claimants are the bonafide owners of the Obot Idim Okon Ekpo Essien farmland along Calabar ? Itu Highway in Ekim/Uyi Clan in Odukpani Local Government Area.
6. That the original leader [sic] of the claimant was Etinyin Ibitam, he allotted this portion of farmland to Obong Okon Ekpo Essien.
7. That we have been making use of this farmland for ages till now without any encumbrance. We normally grant short term lease to farmers to cultivate the land and sometimes the palm bush. The agreements are hereto

tender [sic] in evidence.

Similarly, paragraphs 6, 7 and 8 of the statement on oath of Mr. Ayi Ekpenyong who testified as PW2 read thus:
6. That my family have a common land boundary with the claimant in this parcel of land called Obot Idim Okon Ekpo farmland in Ekim Uyi Clan in Odukpani Local Government Area.
7. That from time immemorial we have been maintaining this land boundary as neighbor with the claimants family without any problem.
8. That the original owner of this land was Obong Effiong Ibitam of Usung Esuk village and he granted a portion of this area called Obot Idim Okon Ekpo to the claimant?s forefather Obong Okon Ekpo Essien due to his assistance during the period of deforestation of the land in dispute.

In the instant case, the learned trial judge was justified to have held that the Appellants abandoned their line of pleading and gave evidence not in line with their pleading. The rationale for the concept of abandonment of pleadings is that parties are strictly bound by their pleadings and they are not allowed to make a case that is at variance with their pleadings. Just as it is not

open to a Court to violate the pleadings of the parties and make a case for them contrary to their pleadings. See BUHARI v OBASANJO [2005] 13 NWLR [Pt. 941] 1 SC; ITO v EKPE [2000] 2 SC 98; MAKINDE v AKINWALE [2000] 1 SC 89; ADELEKE v IYANDA [2001] 13 NWLR [Pt. 729] 1 SC; ADENIRAN v ALAO [2001] 18 NWLR [Pt. 745] 361 SC.

Relatedly, where as in the instant case, a claimant for title to land who pleads traditional history fails

to prove his root of title by that means, he cannot turn around to rely on acts of ownership and possession to prove his title to the land. As a matter of course, there would be nothing on which to found acts of ownership. In such a case, the Court is obliged to dismiss the claimant?s claim. Similarly, where a defendant to a claim for title to land fails to prove his root of title by traditional history as pleaded, his defence to the claim would fail. See OYADARE v KEJI [2005] 7 NWLR [Pt. 925] 571 SC.

In the instant case, the Appellants as claimants were not able to prove their title to the land in dispute from the pleadings and evidence relied upon in the Court below. Furthermore, the ratio decidendi of the decision of the Court below in the instant case was abandonment of pleadings and lack of proof of title to land by the Appellants and not any arbitral award.

Nevertheless, I do agree with the learned counsel for the Respondent, that the Appellants are bound by the award of customary arbitration against their predecessors in favour of the privies and predecessors of the Respondent.

For the above reasons, the only issue for determination in this appeal is resolved against the Appellants.
This appeal lacks merit and it is accordingly dismissed. N30,000.00 costs is awarded in favour of the Respondent.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in draft judgment just delivered by my learned brother. MOJEED ADEKUNLE OWOADE. JCA and am in complete agreement with the resolution of the sole issue determination. I wish to add a few words to the damaging effect of a party failing to give evidence in a pleadings. it means the pleadings have been abandoned and consequently. the case abandoned too. See OLUSANYA VS. OSINLEYE (2013) LPELR-20641 (SC) which held thus:
In ETOWA ENANG & ORS vs E.I ADU (1981)1 NSCC 453 at 459 lines 15-20, it was said clearly that any pleading not backed by evidence goes to no issue and should be disregarded by the Court. “In NEWBREED ORGANISATION LTD. VS J.E ERHIOMOSELE (2006) 5 NWLR (PART 974) 499 this Court held thus. ?it is now settled that pleadings do not constitute evidence and therefore where such pleading is not supported by evidence,

oral or documentary, it is deemed by the Court as having been abandoned.” See also EZEANAH VS ALHAJI ATTAH (2004) 2 SCNJ 200 at 235; (2004) 7 NWLR (PART 873) 468: IFETA VS SPDC NIG.LTD. (2006) 8 NWLR (PART 983) 585; WOLUCHEM VS GUDI (1981) 5 SC 291; BASHEER VS. SAME (1992) 4 NWLR (PART 236) 491; UWEGBA VS ATTORNEY GENERAL, BENDEL STATE (1986) 1 NWLR (PART 16) 303; ADEGBITE VS OGUNFAOLU (1990) 4 NWLR (PART 146) 578 at 590; AJUWON VS, AKANNI (1993) 9 NWLR (PART 316) 182; ELEGUSHI VS. OSENI (2005) 14 NWLR (PART 945) 348.” Per ALAGOA, J.S.C
I also abide by the Orders made in the lead judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of reading the judgment just delivered by my learned brother, MOJEED A. OWOADE JCA. The bone of contention was whether the appellants as claimants at the trial Court were able to prove their title to the Land in dispute.

It is settled that title to land may be proved in any of the following ways:-
(a) By traditional evidence;
(b) By production of documents of title duly authenticated and executed;

(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership;
(d) By acts of long possession and enjoyment;
(e) By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute. See IDUNDUN V OKUMAGBA (1976) 9 10 SC 227, NKADO V OBIANO (1997)5 NWLR (pt 503) 31 and OWHONDA V EKPECHI (2003) 17 NWLR (pt 849) 326.

In the instant case, the appellants vide paragraph 3 of the statement of claim relied on traditional history but failed to prove their root of title. In an action for declaration of title to land as in this case, the onus is on the claimant to establish his title upon a preponderance of evidence or on the balance of probability. Thus, he must succeed on the strength of his own case and not on the weakness of the defence except where the defendant’s case

supports his case which was totally not the case here.

I totally agree that the appellants were unable to proffer any satisfactory evidence as to their root of title and how they came down and possess same. Consequently, the findings of the trial Court in that regards are unassailable.

For the above and for the fuller reasons given in the lead judgment, I too dismiss the appeal as lacking in merit, abide by the consequential orders including the order as to costs.

Appearances:

Ukpong Eba, Esq.For Appellant(s)

Chief F. O. Onyebueke, Esq.For Respondent(s)

Appearances

Ukpong Eba, Esq.For Appellant

AND

Chief F. O. Onyebueke, Esq.For Respondent