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UDOEKONG & ANOR v. EKPO & ANOR (2020)

UDOEKONG & ANOR v. EKPO & ANOR

(2020)LCN/15661(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 20, 2020

CA/C/223/2012

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

YargataByenchitNimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

CHIEF ARCHIBONG UDOEKONG & ANOR APPELANT(S)

And

CHIEF ENOBONG THOMPSON EKPO & ANOR RESPONDENT(S)

 

RATIO:

THE CONFLICTING TRADITIONAL HISTORIES OF THE PARTIES

The learned trial Judge found the traditional histories of the parties to be conflicting but resolved same in favour of the Respondents/Plaintiffs as follows on page 103 of the Record of Appeal.
“I have noted that the traditional history of where the Plaintiffs are living is conflicting with that of the Defendant. The law is that where two conflicting but apparently true or honest traditional histories are placed before the Court, one by each of the parties, their cogency is determined by acts of possession in recent times in so far as they lead the Court to ascertain which of the two histories is more probable. Ekpo vs. Ita 2 NLR 68, Alade vs. Awo (1975) 4 SC 215 MUHAMMED LAWAL SHUAIBU, J.C.A.

THE DECLARATION OF TITLE TO LAND

As rightly posited in the lead Judgment that failure to file plan in an action for declaration of title to land is not fatal to the case if both parties know the identity and have given sufficient particulars of the identity of the land. The onus is on the claimant who seeks a declaration of title to land to show clearly the area of land to which his claim relates.
Where however the parties themselves know the portion of land in dispute, the principle would not strictly apply. See BARUWA V OGUNSHOLA (1938)4 WACA 159 and ANAGBADO V FARUK (2019) 1 NWLR (PRT 1653)292 at 311. MOJEED ADEKUNLE OWOADE, J.C.A. 

THE PARTIES GIVING DIFFERENT NAMES TO THE LAND IN DISPUTE IS IMMATERIAL

The law said counsel is that the fact that the parties give different names to the land in dispute is immaterial as long as they know the land they are disputing. He referred to the cases of AIYEOLA VS. PEDRO (2014) 409 @ 441 paras. D-H, paras. C-D pp. 462-463 paras. H-B, AWOYOOLU VS. ARO (2006) 4 NWLR (pt. 971) 481) @ pp 498-499, paras. B-A. MOJEED ADEKUNLE OWOADE, J.C.A. 

 

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Philomena S. Etim J. of the Akwa Ibom State High Court sitting at Uyo delivered on the 18th day of May, 2012.

The Respondents as Plaintiffs took the action in a representative capacity against the Appellants as Defendants claiming:
1. A Declaration that the plaintiffs are entitled to the statutory right of occupancy of all the piece or parcel of land known as and called “NdonEkpeneEbana” or EkpeneEkong” situated in ObioEtoi verged blue on the plaintiffs’ survey plan No. AQ14/87 (LD) dated 24th June 1987 filed along with the further Amended Statement of claim.
2. N40, 000.00 general damages for trespass in that the defendants between the months of July and December, 1986 without the permission, consent, license or leave of the plaintiffs entered the said parcel of land cleared portions of the same, and planted crops thereat planted crops at portions previously cleared by the plaintiffs, destroyed and or damaged economic trees, three Ukana, one Ukpa and 20 palm wine trees and harvested fruits.
3. Aperpetual injunction restraining the defendants, their servants or agents from further trespass to the said parcel of land or in any way interfering with the plaintiffs’ statutory right of occupancy thereof”.

The suit which led to this appeal was initiated by a writ of summons filed on 8th January, 1987, followed by a statement of claim filed on 19th August, 1987. The Respondents/Plaintiffs filed Amended Statement of claim on 9th May, 1989 and a further additional Amended Statement of claim on 7th May, 1993.

The Appellants as Defendants filed their Statement of defence on 11th July, 1988, further Amended Statement of defence on 1st April, 1992 and further additional Amended Statement of defence on 4th June, 1993.

The Respondent commenced their case on 17th June, 2008 with only Enobong Thompson Ekpo as PW1. The Respondents tendered several documents marked Exhibits 1, 2, 3 and 4.

The Appellants as Defendants called DW1 and DW2 and tendered Exhibits 5, 6, 7 and 8. Apart from documentary evidence, the suit between the parties was fought on the basis of traditional evidence.

It was PW1’s evidence that apart fromPlaintiffs’ village being called ObioEtoi, the Defendant derogatorily refer to their village as EtokEtoi. That Plaintiff’s inhabited ObioEtoi from time immemorial when their ancestor Ananga from Ibom deforested same. Ananga had a son called Akpan Ananga. Akpan Ananga had six sons namely; Ebia, Ebo, Obom, Antem, Odok and Esua. That in the custom of Etoi, any person who deforests a piece of land owns that land. The land in dispute now belongs to the Plaintiffs’ who are the descendants of Ananga. Four of the children of Akpan Ananga migrated into other places for greener pastures and as a result, they founded other Etoi lands and villages.

Ebia founded Ikot Ebia and ItiamEtoi. Antem founded Ikot Antem village in Etoi. Ebo founded MbakEtoi village. Obom founded ObotObom village, Esua and Odok remained in ObioEtoi with their father and grandfather when others left. Altogether Etoi is now 27 villages, but at the commencement of the instant suit there were 22 villages. Esua died childless while Odok had 5 sons, namely; Ananga, EbioUdoinynag, Ntuen and Abasi. They made up the 5 families (Ekpuk) in ObioEtoi. They are (1) EkpukNungAnanga (2) EkpukNungEbio (3) EkpukNung Udo Inyang (4) EkpukNungNtuen and (5) EkpukNungAbasi.

PW1 further testified that Ananga, his son and grandchildren-built Shrine and named it AfiaEtoi. Ananga was the 1st priest that administered the shrine. After his death, Akpan Ananga succeeded him as the priest. The shrine was worshiped by the clan heads of Etoi and non-believers except those who were/are Christians. That ObioEtoi is the central point of all Etoi villages and this is the historical and spiritual importance of ObioEtoi. The significance of AfiaEtoi shrine in ObioEtoi is consistent with the Plaintiff’s claim that the Plaintiffs are not strangers to where they live and where the village situates.

In addition, and in particular the Respondents tendered Exhibits 1 and 2. Exhibit 1 is the proceedings in Suit No. 198/36 in the Etoi customary Court between the Appellants represented by Chief Udoekong Akpabio as Plaintiffs and the Respondents represented by Chief Akpan Ekpo and Akpan EbeEtuk as Defendants. The suit was dismissed in favour of the Respondents.

Exhibit 2 is the report of Chief J. U. Eka peace committee into thedispute between the Respondents and eight (8) neighboring villages including the village of the Appellants over the same parcel of land. The decision of the panel was in favour of the Respondents.

The evidence of PW1 further shows that the Respondents/Plaintiffs have been in possession of the land in dispute as their inheritance from their ancestor who deforested same from time immemorial.

In presenting their own traditional history, the Appellants as Defendants acknowledged Ananga as the Respondents/Plaintiffs ancestor in their location called EkpeneEkong which DW1 further described as the ancestor battle ground between the surrounding villages. That Ananga was found hiding in a bush after he had murdered someone and tried to escape. That one AtaiAbiaEtoi adopted Ananga as a servant and showed him the ancient battle field to live there. He lived there permanently married many wives from AnuaObio, MbierebeObio and Mbiokporo. That Ananga lived all through in EkpeneEkong. However, that the land in dispute is called UdoeNkana and EkpeneEnai which situate in AnuaObioOffot and belongs to AnuaObio.

The learned trial Judge found thetraditional histories of the parties to be conflicting but resolved same in favour of the Respondents/Plaintiffs as follows on page 103 of the Record of Appeal.
“I have noted that the traditional history of where the Plaintiffs are living is conflicting with that of the Defendant. The law is that where two conflicting but apparently true or honest traditional histories are placed before the Court, one by each of the parties, their cogency is determined by acts of possession in recent times in so far as they lead the Court to ascertain which of the two histories is more probable. Ekpo vs. Ita 2 NLR 68, Alade vs. Awo (1975) 4 SC 215.
By the judgments in Exhibits 1 and 2 above tendered by the Plaintiffs, it is clear that the Plaintiffs have been in possession of the land called ObioEtoi including the land in dispute EkpeneEbana or EkpeneEkong. In Exhibit 1 i.e. the judgment of the Native Court of Etoi in 1936 the Defendant failed in their declaration of the title to UdoeNkanga because they trespassed into the Plaintiff’s land which had clear boundary trees and features. The judgment of the peace panel in Exhibit 2 goes to confirm theevidence of the Plaintiffs through PW1 that in 1965 the Defendant connived with the neighboring village mentioned in the said exhibit to trespass into the Plaintiffs land, hence the order by that Court. That the nine villages including AnuaObio must stop encroaching into the land of ObioEtoi, the Plaintiff’s land.
The Plaintiff’s in their evidence through the 1st Plaintiff PW1 has testified to various acts of possession on the entire ObioEtoi land including EkpeneEkong/EkpeneEbana including planting and harvesting palm fruits, farming on the land etc.
I therefore resolve the conflict in evidence of traditional histories in favour of the Plaintiffs following from the above.”

​On the issue of identity of the land in dispute and the reference of survey plans, he held at pages 104 – 105 of the Record of Appeal as follows:
“This leads me to the issue for boundaries. In an action for declaration of title, it is the duty of the claimant to establish with certainty and accuracy the identity of the land in dispute. This must be done by credible evidence. Failure to establish the identity of the land is fatal to theclaim.
In this case, The Plaintiffs both in their statement of claim and evidence have clearly defined the boundary of the land in dispute. They have also filed a plan delineating the boundaries of the land in dispute. The said plan is plan No. AQ14/87/47/ (LD). The Defendant on the other hand in their statement of defence and evidence of DW1 have defined the same boundaries and have also tendered a plan No. ESA/16881 LD. It is my view that both parties i. e. the Plaintiff’s and DW1 have clearly and distinctively identified the land both in his statement of claim evidence and plan.
This leads me to the submission of defence Counsel that the survey Plan of the Plaintiffs- Exhibit 3 is inadmissible but was admitted in error same not having a certificate of deposit annexed therewith in accordance with Section 1 Survey Law Cap 125 Laws of Akwa Ibom State.
This Court has this to say-
1. This is a 1987 case and the said plan was filed in 1987 which has passed through many judges until it finally came before this Court. I agree with the Learned Counsel for Plaintiffs in his submission that when the case was commenced in 1987 the requirementof the Certificate of Deposit was not mandatory and it was not a requirement before any plan could be filed.
2. He who comes to equity must come with clean hands. The Defendant plan filed in 1988 and tendered by DW1 is not accompanied by any certificate of deposit for the same reason that at the time of the commencement of this case, certificate of deposit was not mandatory.
3. Even if no plan was filed, failure to file a plan in a claim for declaration of title is not fatal if both know the identity of the land in dispute and have given sufficient particulars of same as in this case. Usung vs. Nyong 2 NWLR (2010) (Pt. 1177) 83 (Supra).
I think it is necessary to recall here that it is the same UdoeNkanga which the defendants sued the Plaintiffs in Exhibit 1 for declaration of title, damages for trespass and injunction and which case was dismissed with cost in 1936.
I also recall that even the Defendants on record averred had they were not mandated by the village of AnuaObio to defend the suit. All these leave much to be desired on the part of the Defendants.”

​The learned trial Judge found amongst other things that theAppellants/Defendants have testified to the fact that EkpeneEkong is the land of the Respondents/Plaintiffs and that Ananga is their ancestor. That the identity of the land in terms of boundaries is not in dispute irrespective of the name given by the Appellants.

He concluded that the Respondents/Plaintiffs have proved their case on balance of probability and granted their claims. Dissatisfied with this judgment, the Appellants at first filed a Notice of Appeal on 19th June, 2012 but later filed an Amended Notice of Appeal containing seven (7) grounds of Appeal in this Court on 14th May, 2014.
Appellant’s Brief of Argument dated 25th January, 2019 was filed on the same day. It was settled by Ada Okonkwo (Mrs.)
Respondent’s Brief of Argument filed on 22nd January, 2020 was deemed filed the same day.

Learned Counsel for the Appellants nominated six (6) issues for the determination of the Appeal.
They are:
1. Whether the learned trial judge was right in making a declaration of the Statutory Right of Occupancy of the land the Respondents called “NdonEkpenEbana” or EkpeneEkpong” verged blue on thePlaintiff’s survey plan No. AQ14/87 (LD) dated 24th June, 1987 filed along with the statement of claim “when the plan was not accompanied by a certificate of deposit. (Encompassing Ground 1 of the additional grounds of Appeal).
2. Whether the trial Court was right when he admitted and relied on inadmissible evidence in her judgment. (Encompassing ground 2 of the additional grounds of appeal).
3. Whether the Lower Court was right when she held that the Plaintiffs had adopted traditional history in proving their title to the land when the evidence of traditional history was inconclusive not linking the Plaintiff with Ananga who allegedly deforested the land. (Encompassing Ground 3 of the additional grounds of appeal).
4. Whether the learned trial judge was right in granting the Plaintiffs reliefs when such reliefs were not proved before the Court. (Encompassing Ground 4 of the additional grounds of appeal).
5. Whether the learned trial judge properly weighed the evidence adduced at the trial before giving judgment in the suit. (Encompassing original Ground 1 of the grounds of appeal).
6. Whether the trial Court had thejurisdiction to give judgment in the suit six months after final addresses. (Encompassing Ground additional grounds 5 & 6 of additional grounds of appeal).

Learned Counsel for the Respondents adopted the issues formulated by the Appellants.

Appellant’s Counsel chose to argue issue 1 separately issues 2, 3, 4, and 5 together and issue 6 separately.

Appellants’ referred to and reproduced the provision of Section 1 of the Surveying Law of Akwa Ibom State Cap. 128 and submitted that the trial Court was wrong when she held that the Respondents/Plaintiffs are entitled to the Statutory Right of occupancy of all the piece or parcel of land known as and called “NdonEkpeneEbana” or EkpeneEkong verged blue on the Respondents/Plaintiffs survey plan No. AQ14/67 (LD) dated 24th June, 1987 filed along with the Statement of claim when the plan was not accompanied by a certificate of deposit.

In response to Appellants issue 1 Learned Counsel for the Respondents submitted that in a plethora of cases, the Superior Courts have held that failure to file a plan in an action for declaration of title to land is not fatal to the caseif both parties know the identity and have given sufficient particulars of the identity of the land. He referred on this to the case of Ogedengbe vs. Balogun (2007) 9 NWLR (Pt. 1039) 380 at 394.

He referred us to the claims of the Respondents in the Court below on pages 8 and 9 of the record of appeal. And to paragraphs 13-14.4 of the further additional amended statement of claim of the Respondents which is in page 7 of the Record of Appeal. There, said counsel, the Respondents gave a clear and vivid description of the land in dispute. That in his testimony in chief on Wednesday the 11th day of March, 2009 the PW1 Chief Enobong Thompson Ekpo gave oral testimony of the description and location of the land in dispute and stated inter alia “the features of the land remain the same throughout our disputes with defendants” (Page 60 of the Record of Appeal). In paragraph 14.2 of the further additional amended statement of claim on page 7 of the record of appeal, the Respondents stated thus:
“14.2 The afore-described boundary line has remained unaltered through the ages and its features are consistent with that which had earlier beenvisited shown and inspected by the various Courts and panels as mentioned elsewhere in this claim particularly in paragraph 11(b) hereof”

The Appellants, said counsel did not deny this averment (see paragraph 7(b) of the further additional amended statement of defence on page 11 of the Record of Appeal). He submitted that the law is that a general traverse of a specific assertion in a statement of claim or an affidavit is not denial and constitutes an admission of that averment. He referred to the cases of UBN PLC VS. CHIMAEZE (2014) 9 NWLR (pt. 1411) 166 at 196 paras. C-F, ATANDA VS. ILIASU (2013) 6 NWLR (pt. 1351) 529) at 550-551 paras. G-A and Order 17 Rule 2 Akwa Ibom State High Court (Civil Procedure) Rules, 2009. He added that the position of the law is that a survey plan of land in dispute is unnecessary where the party gives oral evidence of the identity of the land in such a way as to enable a survey plan of the land to be produced from that description. He referred to the cases of MAIKANTI & ORS. VS 7 UP BOTTLING CO. (2013) LPELR 20297 (CA), MAIGARI VS. AMILATIYA (2011) 1 NWLR (pt. 1228) 379.

He submitted that the Appellants didnot dispute the identity of the land in dispute in their further additional amended statement of defence. (Pages 10-13 of the Record of Appeal). The Appellants said counsel knows the land they are disputing with the Respondents. While the Respondents call the land NdonEkpeneEbana or EkpeneEkong, the Appellants call it UdoeNkanga land and EkpeneEnai (paragraph 6 of the further additional amended statement of defence on page 10 of the Record). The law said counsel is that the fact that the parties give different names to the land in dispute is immaterial as long as they know the land they are disputing. He referred to the cases of AIYEOLA VS. PEDRO (2014) 409 @ 441 paras. D-H, paras. C-D pp. 462-463 paras. H-B, AWOYOOLU VS. ARO (2006) 4 NWLR (pt. 971) 481) @ pp 498-499, paras. B-A.

​He submitted that there is evidence on record that the parties have over the years been engaged in various law suits in respect of title to the land in dispute. There is also evidence of a peace committee intervention into the dispute over the same land involving the Appellants and the Respondents. He referred to the following Exhibits;
a. Exhibits 1: Proceedings inSuit No. 198/36 in the Etoi Customary Court between the Appellants, represented by Chief Udoekong Akpabio as Plaintiffs and the Respondents represented by Chief Akpan Ekpo and Akpan EbeEtuk as Defendants. The suit was dismissed in favour of the Respondents.
b. Exhibit 2: Report of Chief J. U. Eka peace committee into the Dispute between the Respondents and eight (8) neighboring villages including the village of the Appellants over the same parcel of land. The decision of the panel was in favour of the Respondents.

He referred also to paragraph 2, 5 and 11a-12 of the further additional amended statement of claim on pages 4-6 of the Record of Appeal where the Respondents pleaded Suits Nos. C/12/67 in the then High Court of Biafra and Suit No. HU/26/71 in the High Court of Southern Eastern State of Nigeria Holden at Uyo over the same land in dispute in this case involving the Appellants and the Respondents. The Appellants did not deny those averments in their further additional amended statement of defence. (paragraphs 1 and 2 thereof on page 10 of the record of Appeal).

On this score, Learned Counsel for the Respondent submitted that a SurveyPlan was not necessary to establish the identity of the land in dispute. And that whether the Survey Plan was rightly or wrongly admitted the trial Court was right in declaring title to the land in favour of the Respondents. Still on issue 1 but in the treatment of issues 2, 3, 4 and 5 especially issue 2 Respondents counsel further submitted that a survey Plan be accompanied with a certificate of deposit before it is admissible in a trial is a provision of the Survey Law of Akwa Ibom State. And that it has been decided in the case of BENJAMIN VS. KALIO (2018) 15 NWLR (pt. 1641) 38 at 51-52 that instrument is governed by the Evidence Act not the “Land Instruments (Preparation and Registration) Law — and therefore that the learned trial judge was right in admitting the Survey Plan Exhibit 3 in evidence and acting on it.

Also, Respondents Counsel submitted that the learned trial Judge specifically found as a fact that both Appellants and the Respondents know the identity of the land in dispute and that the Appellants have not appealed against this finding of fact. He added that the law is that a finding of fact not appealed against stands and can nolonger be contested on appeal.

On this, Respondents Counsel referred to the cases of OGBU VS. STATE (2017) 8 NWLR (pt. 1567) 236 at 277-278 and ATANDA VS. ILASU (2013) 6 NWLR (pt. 1351) 529 at 558.

He urged us to resolve issue 1 in favour of the Respondents.

RESOLUTION OF ISSUE 1
Learned Counsel for the Respondents has provided adequate answers in response to Appellants issue 1. The first is that the issue of the admissibility or non-admissibility of the Plaintiffs/Respondents Survey Plan is not important and does not arise where as in the instant case the identity of the land in dispute is known to the parties. This is because the tendering or production of a Survey Plan to prove identity of the land in dispute is in fact unnecessary where the land in dispute is shown or proven by evidence to be known to the parties. See Ogedengbe vs. Balogun (2007) 9 NWLR (pt. 1039) 380 at 394, Awoyoolu vs. ARO 2006 4 NWLR (pt.971) 481 at 498-499.

Still on this Learned Counsel for the Respondent further submitted and rightly in my view that the specific finding of fact by the learned trial Judge that the identity of the land in dispute is known tothe parties was not appealed and therefore remains binding. See OGBU VS. STATE (2017) 8 NWLR (pt. 1567) 236 at 277 – 278, ATANDA VS. ILASU (2013) 6 NWLR (pt. 1351) 529 at 558.

Lastly, on issue 1 Learned Counsel for the Respondent referred to the case of BENJAMIN VS. KALIO (2018) 15 NWLR (pt. 1641) 38 at 51-52 where the Supreme Court in disregarding Section 20 of the Land Instruments (preparation and Registration) Law of Rivers State 1999 for rendering a piece of evidence unpleadable and inadmissible in evidence stated inter alia.
“A piece of evidence pleadable and admissible in evidence by dint of the Evidence Act cannot be rendered unpleadable and inadmissible in evidence by a law enacted by the House of Assembly of a State under the prevailing constitutional dispensation. In the instant case, the Appellants’ contention that Section 20 of the Land Instruments (Preparation and Registration) Law, Cap 74 Laws of Rivers State, 1999 rendered Exhibit “1”, a land instrument, unpleadable and inadmissible in the proceedings at the trial Court went to naught. The admissibility of the Exhibit “1” is governed by theEvidence Act not the Land Instruments (preparation and Registration Law, Cap. 74 Laws of Rivers State, 1999. Therefore, the trial Court was right when it held that Exhibit “1” was properly pleaded and could not be said to be inadmissible under any law enacted by the House of Assembly of Rivers State”

In all the circumstances of this case the learned trial Judge was right in admitting the Respondents Survey Plan Exhibit 3 in evidence and in any event was right from the state of pleadings and evidence to have come to the conclusion that the identity of the land in dispute is known to the parties. Issue 1 is resolved in favour of the Respondents. Learned Counsel for the Appellants argued his issues 2, 3, 4 and 5 together in one piece.

He submitted that the evidence of PW1 on the identity of the land in dispute is at variance with the averment in paragraph 14 of the Plaintiffs/Respondents further Amended Statement of claim on the description of the land in dispute.

He submitted that parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings goes to no issue and should be disregardedby the Court. On this, Appellant’s counsel referred to the cases of NJOKU VS EME (1973) 5 SC 293, Overseas construction Ltd vs. Creek Ent. Ltd. (1985) 3 NWLR (part 13) 407 at 409, Bichi vs. Shekarau (2009) 1 NWLR 15, Eseigbe vs. Agholor (1990) 7 N.W.L.R. (part. 161) 234 at 248.

Learned Counsel for the Appellants repeated his submissions and arguments on issue 1 in his treatment of issues 2, 3, 4 and 5 on the admissibility of the Respondents Survey Plan Exhibit 3.

On another wicket, he went further and submitted that where a party relied on traditional history in proof of his title to land, he must plead the following facts.
a. Who founded the land
b. How the founder founded the land and
c. The particulars of the intervening owners through whom he claims.

After referring on the above to the case of Anyanwu vs. Mbara (1992) 5 N.W.L.R. (part 242) 386 at 390, he submitted that in the instant case, the Plaintiffs/Respondents pleaded who founded the land and how he found it but failed to plead the intervening owners through whom they claim. That it is not enough to plead that the Plaintiffs have inhabited the land since timeimmemorial and as in paragraph 7 (a) and (b) and 9 of the further Additional Amended Statement of claim that:
“7 a. The Plaintiff have inhabited the said village since time immemorial when their ancestor Ananga, who came from Ibom, first cleared the virgin forest and founded the village of ObioOffot. Their said ancestor, Ananga had only one son, Akpan Ananga who lived with him. The said Akpan Ananga had six sons whose names were Ebia, Antem, Ebo, Obom, Odok and Esua.
b. The Plaintiffs aver that it is the custom of Etoi people that he who deforests a virgin forest becomes the owners of the land thereof. All land of the virgin forest cleared by the plaintiffs ancestor belong to the plaintiffs.
9. While Esua died childless, Odok had five sons, namely Ananga, Ebio, Udo Inyang Ntuen and Abasi who constituted the five “Ekpuk” of ObioEtoi and from whom the Plaintiffs are lawful descendants. The said five “Ekpuk” became known as “NungAnanga” NungEbio”, NungUdfo Inyang” NungNtuen and NungAbasi.”

​He also referred to the evidence of PW1 at pages 55 to page 56 of the Record of Appeal towit:

Also, at page 55 lines 18 to 56, the PW1 testified as follows:
“In the custom of Etoi, any person who deforests a land that owns that land the land now belong to us the descendants of Ananga this made up 5 families (Ekpuk) in ObioEtoi. They are:
1. EkpukNungAnanga
2. EkpukNung Udo Ebio
3. EkpukNung Udo Inyang
4. EkpukNungNtuen and
5. EkpukNungAbasi”

He submitted that the Respondents traditional history is inconclusive as there was no evidence from the record linking the Plaintiffs/Respondents with the said Ananga. That it is not enough to say that Ananga was their ancestor who deforested the land. That for the Plaintiffs to succeed they must trace their history to the present generation. He referred on this to the case of Arum vs. Nwobodo (2013) 10 NWLR (part. 1362) 374 at 405-409.

He submitted that it is settled law that in an action for declaration of title to land, the onus lies on the Plaintiff to succeed on the strength of his case and not on the weakness of the Defendants case. He referred to the cases of Bankole vs. Dada (2003) 11 NWLR (part 830) 174 at 227 First Bank Nigeria Plc.vs. Excel Plastic (Nig.) Ltd. (2003) 13 NWLR (part 837) 412 at 451. He urged us to resolve issues 2, 3, 4 and 5 in favour of the Appellants.

Learned Counsel for the Respondent also responded to Appellants issues 2. 3, 4 and 5 together in one piece. He noted that in advancing the arguments in support of these issues, the Appellants referred to the issue of identity of the land in dispute and the admissibility of Exhibit 3 as previously argued under their issue 1 and in paragraphs 4.5-4.12 of their brief of argument repeated the argument that the identity of the land in dispute was not established by the Respondents. That the description of the land in dispute in the pleadings of the Respondents is at variance with the evidence of PW1 relating to the identity of the land in dispute.

On this, Learned Counsel for the Respondents repeated and adopted all arguments in respect of the issue of the identity of land in dispute and added that the testimony of the PW1 on page 60 of the Record of Appeal agree substantially with the pleadings in paragraph 14-14.3 of the Further Additional Amended Statement of claim. Still on the identity of the land in dispute andadmissibility of the Respondents Survey Plan Exhibit 3. Respondents Counsel submitted further that in paragraph 11 of the Further Additional Amended Statement of Defence on page 13 of the Record of Appeal, the Appellants admit that it is the same parcel of land that they call UdoeNkanga and EkpeneEnai which the Respondents crossed into in 1931 which is in dispute in this case. This, counsel said is an indication that the Appellants know the land in dispute though they call it by different names.

On the Appellants allegation that the Respondents failed to trace their roots to Ananga their ancestor who deforested the land in dispute, he noted that the Respondents sued the Appellants in a representative capacity for themselves and as representative of the people of ObioEtoi village in Uyo Local Government Area claiming the disputed land, not as their own personal property but as communal land. That in paragraphs 7(a)-10(a) of the further Additional Amended Statement of claim on page 5 of the Record of Appeal, the Respondents state that their ancestor Ananga deforested the entire land that constitute ObioEtoi village today which includes the land indispute in this case and his son Akpan Ananga inherited the lands including the land in dispute. After him, his six sons inherited the land and lived in it as did their father and grandfather. Four out of the six children of Akpan Ananga left and founded their different villages while two sons, Odok and Esua remained with their father and grandfather in ObioEtoi. Esua died childless while Odok had five sons who founded the five (5) Ekpuk or families of ObioEtoi from where the Respondents are lawful descendants. (Paragraph 9 of the Further Additional Amended Statement of claim).

He submitted that being the descendants of Ananga, the founder of all the lands in ObioEtoi including the land in dispute in this case, the Respondents have traced the lineage from Ananga through Akpan Ananga to Odok the patriarch of the five (5) Ekpuks or families of ObioEtoi who inherited the land in dispute being an integral part of the ObioEtoi land from his father Akpan Ananga, who inherited this same land from his father Ananga who deforested the land and became the owner thereof according to the custom of the Etoi people.

On this, Respondent referred to the case ofSOGUNRO VS. YEKU (2017) 9 NWLR (pt. 1570) 290 at 311. He added that throughout the pleadings, testimony and address of the Appellants, there is no place the Appellants raised the failure of the Respondents to prove traditional history of the land in dispute by not tracing the lineage of the founder Ananga to the Respondents. He referred on this to the case of OJO VS. ABI ASSOCIATES INCORP (2017) 9 NWLR (pt. 1570) 167 at 186 and submitted that the law is that such new issues can only be raised with the leave of the Court which was not obtained in this case.

RESOLUTION OF ISSUES 2, 3, 4 AND 5
As I noted earlier in this judgment, the learned counsel for the Appellants repeated his submissions and arguments on issue 1 in the treatment of issues 2, 3, 4 and 5 particularly in the treatment of issues 2, 3, 4 and 5. For this reason, I adopt my decision on issue 1 as binding on issues 2, 4 and 5.

In other words, I agree with the learned trial judge that the identity of the land in dispute was known to the parties and in any event the learned trial judge was not wrong to have admitted the Plaintiffs/Respondents Survey Plan Exhibit 3 in evidence in thiscase. On the question whether the Respondents traditional history was inconclusive and not linking the Plaintiffs/Respondents with Ananga who allegedly deforested the land, I agree with the Learned Counsel for the Respondents that being the descendants of Ananga, the founder of all the lands in ObioEtoi including the land in dispute in this case, the Respondents have traced the lineage from Ananga through Akpan Ananga to Odok the patriarch of the five (5) Ekpuk or families of ObioEtoi who inherited the land in dispute.

I also agree with the learned trial judge after relying on the case of Usung vs. Nyong (2010) 2 NWLR (pt. 1177) 83 on the five (5) ways of proving title to land and observed on the traditional history of the Plaintiffs/Respondents on pages 100-101 of the Record of Appeal as follows:
“In the instant case, the Plaintiffs in their Further Additional Amended Statement of claim filed on 7th May, 1993 plead facts consistent with traditional evidence. In their evidence given through PW1, the Plaintiffs testified and traced their root of title to one Ananga. That Plaintiff inhabited ObioEtoi from time immemorial when their ancestorAnanga from Ibom deforested same. That the disputed land “NdonEkpeneEbana” or EkpeneEkong” is situate in ObioEtoi. His evidence showed that Ananga had one son called Akpan Ananga, Akpan Ananga had six sons, namely Ebia, Ebo, Obon, Antem, Odok and Esua. That in the custom of Etoi any person who deforests a piece of land owns that land. Four of the children of Akpan Ananga migrated into other places for greener pastures and as result founded other Etoi villages. But Esua and Odok remained in ObioEtoi with the father and grandfather when others left. That Esua died childless while Odok had 5 children namely, Ananga, EbioUdoinyang, Ntuen and Abasi. These made up the 5 families (Ekpuk) in ObioEtoi, namely, (1) EkpukNungAnanga (2) EkpukNungEbio (3) EkpukNung Udo Inyang (4) EkpukNungNtuen and (5) EkpukNungAbasi.
PW1 further testified that Ananga his son and grandchildren built a shrine and names it AfiaEtoi. Ananga was the first priest that administered the shrine and after his death, Akpan Ananga succeeded him as the priest. That the significance of AfiaEtoi shrine in ObioEtoi is consistent with the Plaintiff’s claimthat Plaintiffs are not strangers to where they live and where their village situates. His evidence further shows that ObioEtoi is the central point of all Etoi villages which make for its historical and spiritual importance.
The evidence of the Plaintiffs above set out is consistent with the facts of traditional history in the Further Additional Amended Statement of claim.”

It is therefore not right to suggest as the Appellants did that the traditional history of the Plaintiffs/Respondents was inconclusive. Issues 2, 3, 4 and 5 are resolved in favour of the Respondents.

On issue 6, Learned Counsel for the Appellants submitted that the learned trial Court no longer had jurisdiction to give judgment in the suit when the judgment was given six months after final addresses. He referred to the provision of Section 294 (1) of the 1999 Constitution (as amended) which requires every Court established under the constitution to deliver its decision in writing not later than 90 days after the conclusion of evidence and final addresses. Still on this Appellant’s counsel further referred to the case of Iloegbunari vs. Obiora (2012) 4 NWLR(part 291) 405 at 455-456 and submitted that final addresses in the case was concluded on 5th December, 2011 and the matter was adjourned to 26th January, 2012 for judgment. Thereafter, that the Court further adjourned the delivery of judgment for one reason or the other. However, that on 16th day of May, 2012 the Court called on the parties to adopt their written addresses for a second time. That after the said adoption of written addresses, the Court delivered its judgment on 18th May, 2012.

He submitted that having adopted the written addresses on 5th December, 2011, there was nothing again to adopt on 16th May, 2012. That the system of adopting final addresses twice is unknown to law and that the system is novel and irregular.

The Appellant further submitted that they have suffered a miscarriage of justice on account of the delivery of the judgment six months after final addresses.

On issue 6, Learned Counsel for the Respondent submitted that the learned trial judge had the jurisdiction to deliver the judgment when she did. That the position of the law is that a complaint of failure to deliver judgment 90 days after conclusion of evidenceand final addresses will only succeed in rendering the judgment null and void where the party complaining successfully establishes the miscarriage of justice that has occurred on account of such delay. He referred on this to the cases of Akoma vs. Osenwokwu (2014) 11 NWLR (pt. 1419) 462 at 487, F. B. N. Ltd. vs. Adepetu& Co. (Nig.) Ltd. (2009) 11 NWLR (pt. 1151) 156 at 170.

He submitted that in the instant case, the Appellants have not printed out one aspect of miscarriage of justice that has occurred on account of the delay. He further referred to the provision of Section 294 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and urged us to resolve the issue against the Appellants.

RESOLUTION OF ISSUE 6
By the Appellants own admission addresses in the case was concluded on 5th December, 2011 and the judgment was eventually delivered on 18th May, 2012. However, that on 16th day of May, 2012, the Court called on the parties to again adopt their written addresses for a second time.

In the instant case, I think time for the delivery of final addresses starts to run from 16th day of May, 2012 and not from 5thDecember, 2011 as suggested by the Learned Counsel for the Appellants for the fulfillment of the provision of Section 294 (1) of the 1999 Constitution on the conclusion of final addresses.

In any event and as suggested by the learned counsel for the Respondents, the Appellants have not shown any miscarriage of justice that could render the judgment null and void assuming there was a breach of the provision of Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

Appellant’s issue 6 is unmeritorious and it is resolved against the Appellants. The Appellants in this appeal formulated six (6) issues for determination. Issues 1, 2, 3, 4, 5 and 6 are all resolved against the Appellants and in favour of the Respondents. The appeal lacks merit and it is accordingly dismissed.

N30,000 costs is awarded against the Appellants.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother M. A. OWOADE, JCA.

I also abide by the trial orders of Court made in the lead judgment particularly dismissed the appeal

Appeal lacks merit and isdismissed.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in advance the draft judgment of my learned brother Mojeed A. Owoade, JCA, I agree with the conclusion that the judgment of the lower Court should be affirmed.

As rightly posited in the lead Judgment that failure to file plan in an action for declaration of title to land is not fatal to the case if both parties know the identity and have given sufficient particulars of the identity of the land. The onus is on the claimant who seeks a declaration of title to land to show clearly the area of land to which his claim relates.
Where however the parties themselves know the portion of land in dispute, the principle would not strictly apply. See BARUWA V OGUNSHOLA (1938)4 WACA 159 and ANAGBADO V FARUK (2019) 1 NWLR (PRT 1653)292 at 311.

It is for these and the more elaborate reasons in the lead judgment that I too, shall enter an order dismissing this appeal. I also abide by the consequential orders, including an order as to costs.

Appearances:

Ada Okonkwo (Mrs.) Esq.,For Appellant(s)

…For Respondent(s)