In the Supreme Court of Nigeria holden in Abuja on March 25, 2011, before their Lordships: Justice Alooma Mukhtar, JSC (presided and delivered the lead judgment; Walter Onnoghen, JSC; Francis Tabai, JSC; Ibrahim Muhammad, JSC, and Olufunlola Adekeye, JSC.SC. 251/2003 Between:Michael Eyo ----- AppellantAndEmeka Collins OnuohaEmeka Collins Onuoha(For themselves and on behalf of the Estate of late Chief Collins Onuoha substituted by order of Supreme Court)ALOMA MARIAM MUKHTAR, JSC (Delivered the lead judgment)In the High Court of Akwa Ibom State, sitting in Uyo, the plaintiff who is the appellant in this appeal instituted an action against the respondents seeking the follow reliefs:SPECIAL DAMAGES:- Six orange trees destroyed N4,000- Five plantain standards destroyed N300.00- Cost of replacing the damaged Zinc and rafters of the plaintiffs homeN25,000- 20 stands of cocoyam destroyedN5,000- General damages N491,700.00TOTAL N500, 000.00- A declaration that the plaintiff is entitled to the certificate of occupancy in respect of the land being and situate beside the building at No. 221 Oron Road, Itiam Ikot Ebia, Uyo, and which said land is more particularly described in Survey Plan No: AS/K146/92LD dated December 18, 1992.- Perpetual injunction to restrain the defendant his agents, servants and privies or otherwise from further trespassing or entering upon the land being and situate beside the building at No. 221 Oron Road, Itiam Ikot Ebia, Uyo, and which said land is more particularly described in Survey Plan No:AS/ AK146/92LD dated December 181992.The plaintiff traced the traditional history of the land to Udo Ekpo Ikpa of Nung Aduak family more than 200 years ago. As a result of the inability to refund a betrothal fees already paid by Udo Ekpo Ikpa to Udo Udo Akpaetim, who was the great grand father of the plaintiff, Udo Ekpo Ikpa surrendered eight pieces of his land to Udo Udo Akpaetim, who exercised maximum acts of ownership. On his death, the plaintiffs father inherited the land and erected a house on a portion, and the land in dispute is part of the land, on which the plaintiff also erected his own building. The defendant sometime in April 1992 broke and entered the land without the consent of the plaintiff and started constructing a building thereon, and in the process destroyed some economic trees on the land.The case of the defendant is that the land in dispute originally belonged to Obot Bassey Udoh of Aduak family, and Obot Bassey Udoh conveyed the piece of land to him by a conveyance dated March 14, 1978. According to the defendant, the house purportedly built by the plaintiff was not built by him, but his brothers for their mother, and it is situated outside the land in dispute. The defendant denied that he ever entered into a land belonging to the plaintiff and did not destroy any economic crop or roof of the plaintiffs house.After the exchange of pleadings, parties adduced evidence, which was appraised by the learned trial judge who dismissed the plaintiffs claims thus:I find that the plaintiff has not discharged the burden of proof to make for a finding in his favour.Aggrieved by the decision, the plaintiff appealed to the Court of Appeal. The Court of Appeal found no substance and merit in the appeal, so it dismissed the appeal. Aggrieved again by the judgment the plaintiff has appealed to this court originally on two grounds of appeal, which were increased to seven grounds of appeal with the leave of this court. In compliance with the rules of the court both parties exchanged briefs of argument to wit a reply brief was also filed by the learned counsel for the appellant. The briefs were adopted by the learned counsel for the parties at the hearing of the appeal. The following issues for determination were raised in the Appellants brief of argument:-Whether the Court of Appeal was right in confirming the dismissal of the Appellants case on the ground that the custom by which the land in dispute was acquired by Udo Udo Akpaetim from Udo Ekpo Ikpa, the man who first deforested the land, was not proved by the appellant in accordance with the law.-Whether the Court of Appeal was right in confirming the dismissal of the plaintiffs case as to who first deforested or settled on the land in dispute without the resolution of important issues in the case of the parties, by adoption of the principle distilled in Mogaji v Odofin.-Whether the Court of Appeal was right when it held that the appellant had failed to prove how the land in dispute devolved on them because the evidence of PW2 was contradictory.-Whether the Court of Appeal was right in using evidence held as going to no issue, as evidence of contradiction of the evidence of PW2.-Whether the appellant has discharged the onus of proof on him, to be entitled to the declaration sought.-Whether the lower Court of Appeal was right in confirming the dismissal of the appellants claims in its entirety.-Whether the Court of Appeal was right in holding, in spite of conflicting evidence of the parties on traditional history of the land in dispute, that the principle in Kodjo v Bonsie did not apply to the consideration of the case.The respondents sole issue for determination is:Whether from the totality of the evidence before the trial court, the Court of Appeal was right in affirming the judgment of the trial court dismissing the appellants claim in its entirety.The gravaman of this appeal revolves around the traditional history of the land in dispute and the appellants failure to prove it, having predicated his case on that particular mode of proving title to land. In his amended statement of claim the plaintiff/appellant made the following averments:-The land in dispute was deforested by Udo Ekpo Ikpa ofNung Aduak family in Itiam Ikot Ebia, more than 200 years ago. The said Udo Ekpo Ikpa had a daughter whom Udo Udo Akpaetim had wanted to marry. It was the custom in the plaintiffs village for would be suitors to pay betrothal fees to either of the parents of the would be bride. Udo Udo Akpaetim had paid the said fee of 8 bundles of manilas in respect of the daughter of Udo Ekpo Ikpa to the girls mother.Udo Ekpo Ikpa objected to the said marriage on the grounds that Udo Udo Akpaetim was his close cousin as they all were from the same family of Nung Aduak.-UdoUdo Akpaetim thereafter demanded for a refund of his money. As Udo Ekpa Ikpa could not do so, he instead, surrendered 8 pieces of his lands to Udo Udo Akpaetim.The defendant denied the above averments in their amended statement of defence as follows:-The defendant denies the averment in paragraphs 6, 7 and 8 of the statement of claim and adds that the plaintiff had by his averments not only distorted his family history but has also exhibited his ignorance of the traditional history of the origin of the land in dispute. The defendant states that the land in dispute was a portion of the five pieces of land deforested by the plaintiffs great grandfather Akpaetim Udo Utuk.The evidence of the plaintiff in support of his supra averments read thus:I got to be the owner of the land in dispute which situates besides a building known as Number 221 Gron Road, Itiam Ikot Ebia, Uyo. It was deforested by Udo Ekpo Ikpa of Nung Aduak family in Itiam Ikot Ebia about 200 years ago. Udo Ekpa Ikpa had a daughter whom Udo Akpaetim wanted to marry. Udo Udo Akpaetim was my grandfather. It was the custom in my village that a would be suitor had to pay the betrothal fees to either of the parents of would be bride. Udo Akpaetim paid the said fee of eight bundles of manilla to the girls mother. When the girl became of age, Udo Ekpo Ikpa and Udo Udo Ekpaetim were cousins from the same Nung Aduak family. UdoUdo Akpaetim then demanded for a refund of his eight bundles of manilla. As Udo Ekpo Ikpa could not refund the fee he transferred eight piece of his land to Udo Udo Akpaetim in place of his money. Udo Udo Akpaetim took possession of the land and exercised maximum acts of ownership. When Udo Udo Akpaetim passed on his interest on the land devolved on Eyo Udo Udo. Eyo Udo Udo was my late father. During the lifetime of Eyo Udo Udo he also exercised maximum acts of ownership on the land.Under cross-examination the Plaintiff testified interalia as follows:I said in my evidence in-chief that Udo Ekpo Ikpa had a daughter whom Udo Udo Akpaetim wanted to marry. 1 do not know the name of the girl. Udo Ekpo Ikpa was a cousin to Udo Udo Akpaetim. The marriage was opposed on the grounds of that relationship. They were from the same Nung Aduak family. The relationship was discovered after the declaration (sic) intention to enter into the marriage. The relationship happened.The second plaintiff witness in his evidence-in-chief gave the following evidence in support of the plaintiffs pleadings:I know how the plaintiff got the land. One of our family members called Udo Ekpo Ikpa married a wife called Kufre UmanaAkpabio. He had a daughter. When the daughter was young, the custom permitted that someone could declare an intention to marry the girl. A symbolic raffia would be tied on the girl to signify that she has been betrothed. Since Udo Ekpo Ikpa had no money. Udo UdoAkpaetim gave the wife of Udo Ekpo Ikpa eight bundles of manilla without the knowledge of the husband, Udo Ekpo Ikpa. The money was given to Kufre to signify that he would marry the daughter. It was betrothal fees. When the girl grew up, Udo Udo Akpaetim went for marriage. Udo Ekpo Ikpa the father of this girl was surprised and told him that a member of a family should not marry from the same family. He said it was unusual. He objected to the marriage. Udo Udo Akpaetim asked Udo Ekpo Ikpa to return his money Udo Ekpo Ikpa was an old man and had no money. Udo Ekpo Ikpa then gave eight parcels of land to Udo Udo Akpaetim in place of this money. Since then the land belonged to Udo Udo Akpaetim. Udo Udo Akpaetim has full relationship with the plaintiff. Eyo Udo UdoAkpaetim is the father of the plaintiff who built on that land. This Eyo Udo Udo was the first son ofUdo Udo Akpaetim.The learned counsel for the appellant has submitted that the trial court and the Court of Appeal erred in law in holding that the appellant had not proved the custom propounded with more than one witness in accordance with the law, as there is uncontroversial evidence before the courts that the appellant proved the custom by calling more than one witness. Reliance was placed on the case of Elynjya v Ozuoule 11 (1962) 1 SCNLR 423. The learned counsel for the respondents has submitted that both the trial court and the Court of Appeal were right in their rejection of the evidence of the appellant and PW2, as the evidence of custom must be cogent and reliable, the veracity of the testimony must not be in dispute, the credibility of the witness must be accepted by the court and there must be no other evidence to the contrary. He referred to the case of Adigun v Attorney General of Oyo State (1987) 1 NWLR (part 53) page 687.The pertinent question I will ask at this juncture is, was the evidence adduced by the plaintiff/appellant cogent and reliable, and does it fall within the principle enunciated in the Prince Yahaya Adigun case supra'I will here below re-echo the words of Obaseki JSC in the said Adiguns case supra, which is encapsulatedthus:-If there is a registered declaration of the customary law regulating the appointment, the evidence is straight forward and would consist in the production of the registered declaration in which case a single witness would suffice. If there is no registered declaration, cogent evidence of the custom must be adduced through credible witnesses in which case prudence demands that more than one witness be called.Applying the above, I will now consider the evidence I have reproduced above on the custom pleaded by the plaintiff/appellant. In the first place, the evidence of the plaintiff that their custom was that a suitor would pay a betrothal fees to either of the parents, and that the father of the would-be bride in this case became aware of the plaintiffs grandfathers intention at the time the would-be bride became of age, is inconceivable. More inconceivable is the fact that the plaintiffs grandfather discovered that they were related and cousins after he had declared his intention to marry Udo Ekpo Ikpas daughter and payment of manila bundles. Is it possible for the marriage proposal to be without the fathers knowledge, and is it possible for the suitor to be ignorant of this biological relationship with the would-be bride' I think not. As a matter of fact if one gleans this evidence against that of his witness (PW2) that the betrothal in the case at hand was not in accordance with the normal practice of the Ibibio land to which they all belong one would see that that custom was not proved. PW2 also contradicted the evidence of the plaintiff that the mother of the would-be bride knew of the biological relationship between them. So if she did, how come she proceeded to accept the declaration of intention, without her husbands knowledge. That she was greedy is not convincing. On the evidence of the refund of the betrothal fees, is it possible for the father of the would-be bride to be compelled to refund fees that he did not receive and was not a party to the act that culminated into the betrothal fees, to the extent that he would divest himself of his land' I doubt it. Towards this I fail to see that the evidence adduced by the Appellant on the custom he has pleaded in paragraphs (6) and (7) of the statement of claim, are cogent and credible. I do not subscribe to the submissions and contentions of the learned counsel for the appellant.The learned trial judge in his judgment, on the question of custom posited thus:It was of crucial essence to prove the custom therefore which vested the land in dispute in the lands (sic) of Udo Udo Akpaetim the man who deforested the land having regard to the competing history set up by the defendant. Such a custom was to be proved by evidence to show that persons in the plaintiffs village regard the alleged custom as binding on them, and that the land in dispute or any portion thereof was acquired in consonance with the said custom as stated in Section 14(3) of Evidence Act. See Prince Yahaya Adigun v Attorney- General of Oyo (1987) 3 SCNLR 118, Olugbemiro v Ajagungbade III (1990) 3 NWLR (Pt. 136) 37. In this wise the custom relied upon must be established.The absence of this proof thus makes the traditional history of the land given by the defendants through D Wl and DW3 more probable.In endorsing the above excerpt of the learned trial judges judgment, Edozie JSC (as he then was) in the lead judgment of the Court of Appeal found thus:The position of the law therefore is that though customary law may be established by evidence of a lone witness, it is unsafe to rely on such evidence and desirable that there should be evidence of more than one witness. I am therefore in agreement with learned trial judge on his observation with respect to proof of customary law.It is the contention of the learned counsel for the appellant that apart from the evidence of PW2 on the eight sons of Udo Udo Akpaetim, the appellant proved his case in accordance with the pleadings. According to learned counsel that piece of evidence was not pleaded, and therefore went to no issue, but it was the evidence the High Court and the Court below accepted and used as evidence to decide that the evidence of PW2 was contradictory. It is learned counsels argument that the said evidence should have been discountenanced, and he referred to the cases of Emegokwe v. Okadigbo (1973) 4 SC 113; National Investment Production Co. Ltd. v Thompson Organisation (1969) NMLR 99 and George v UBA Ltd (1972) 8- 9 SC. 264.The learned counsel for the respondents has, in his reply, contented that there was conflict in the evidence of PW1 and PW2 in that PW2 testified that the property of Udo Udo Akpaetim had not been shared as against the evidence of plaintiff that it had been shared. On the evidence of PW2 on the names of children of Udo Udo Akpaetim that was not pleaded, the learned counsel submitted that the evidence of contradiction went beyond the names of the eight sons of Udo Udo Akpaetim, as it was not used as evidence of contradiction not having been pleaded. Perhaps, I should reproduce hereunder the pertinent excerpt of the judgment of the learned trial Judge on this aspect of the evidence. In canvassing argument under issue (6) supra, the learned counsel for the appellant has hammered on the applicability of the principle of Kojo v. Bonsie (1957) 1 WLR 1223 which the learned trial judge failed to apply. It is the argument of the learned counsel for the respondents that the learned trial judge was not bound to apply the principle in Kojo v Bonsie supra, having found the evidence of traditional history of the plaintiff/appellant and his witness not to be cogent and plausible. In the Kojo and Bonsies case supra, the court in dealing with conflict of traditional history had the following to say:Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanor is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence by seeing which of two competing histories is the more probable.I am guided and strengthened by the above principle. It is instructive in this case to note that in the case at hand, the conflict in the traditional history is not only in the two sides of the divide, but in the evidence of the appellant and his witness. The case of Kojo and Bonsie, is to my mind, not applicable, and it will not be appropriate to invoke the principle propounded therein. To this end, I entirely subscribe to the lower courts finding below which reads thus:For the principle to apply, there must exist side by side two stories of tradition one by each party which are themselves credible and plausible but are in conflict with the other such that the court is unable realistically and justifiably to refer one to the other. In such a situation, either of the two stories may rightly be regarded as likely to be true or that they are probable. It follows that none of the stories in that situation is arbitrarily rejected but each one is tested against recent acts of possession or ownership to determine which of the two stories is more probable.Once it is ascertained, the story that is less probable is rejected. See Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Part. 7) page. 395; Ogbuekwelu v Umeonejukwe (1994) 4 NWLR (Part. 314) 676 at 698, Okeranowebi v Mbadugha (1999) 7NWLR (Pt. 558) 471 at 481, Ene v. Atasie (2000) 10NWLR (Part. 676) 470 at 492. In the instant case where the traditional history of the appellant is not cogent and is contradictory, conflicting and not probable whereas that of the respondent is cogent and probable, the invocation of the principle under consideration does not arise.The learned Justice couldnt have put it better. In view of the above I answer issue (6) supra in the affirmative, and dismiss the ground of appeal which covers it, as being unmeritorious.This is an appeal against the concurrent findings of fact by the two lower courts, which the law is settled should not be disturbed or interfered with, in view of the fact that two courts, one of trial, and the other a superior court has thoroughly considered the veracity or otherwise of the evidence before them. Ordinarily, this court will not interfere with the decisions unless the findings are perverse and not supported by credible evidence, or that evidence was not properly evaluated and this failure has occasioned miscarriage of justice. See Aroyewun v Adediran (2004) 13 NWLR (part 891) page 628; Are v Ipaye (1990) 2 NWLR (part 132) page 298; and Dibiamaka v Osakwe (1989) 3 NWLR (part 107) page 101.My opinion is that the present appeal is not the case, so I find no plausible reason to upturn the judgments of the lower courts.The end result is that I dismiss the appeal in its entirety. I award N50,000 costs to the respondents against the appellant.Counsel:Aderemi Bashua for the AppellantEssien Udom for the Respondents
Click here to read full news..
