IN THE SUPREME COURT OF NIGERIA
On Friday, the 7th day of July 1978
BEN IKPANG & ORS ................................. APPELLANTS
CHIEF SAM EDOHO & ANOR ............................... RESPONDENTS
The respondents sued in 1972 in a representative capacity claiming against the appellants, who were in the course of the proceedings authorised to defend in a representative capacity, damages for trespass to a piece of land "Ndon Ekpe Etok" allegedly committed between 1967 and 1970 and an order for injunction restraining the appellants from further trespass. The respondents based their claim of ownership on traditional history, acts of possession and res judicata based on an earlier 1942 Native Court judgment. The appellants while denying the respondents citation of traditional history and acts of possession and relying upon their own version and acts contended on the matter of res judicata, that although the issue and the subject matter of the 1942 Native Court case were the same as in the present case, the parties were not the same as in the present case, the earlier 1942 case being a personal action between the appellant and respondent in which their respective families were not involved. They contented that the claims of the respondents were inappropriate by reason of the fact that before they issued their writ the government had under the Public lands Acquition Law, cap 105 laws of Eastern Nigeria 1963, compulsorily acquired the land in dispute or part thereof, and that the respondents claim could not lie on a declaration of title since the government now had the title to the land.
The trial Judge found for the respondents holding that the appellants' citation of traditional history was untrue and that they were estopped per ren judication from re-opening the issue earlier decided by the 1942 Native court judgment. On appeal to the Supreme Court.
(1) The respondents were not precluded by the acquisition by the government in September 1972 of the land in dispute from suing in November 1972 for trespass committed by the appellants between 1967 and 1970 to the land in dispute of which they were then in possession, the action not having been barred by limitation of time and not otherwise rendered unactionable.
(2) It is fundamental that to sustain a plea of res judicata the party raising the plea must show that the parties, the issues and subject matter of the current case are the same as in the previous case adjudicated upon by the court of competent jurisdiction before which the proceedings terminated to finality. This is a principle founded on a Public Policy which requires that interest reipublicae ut sit finis litium.
(3) In ascertaining whether the judgment of a Native Court (where lawyers trained in the art of drafting claims and setting pleadings with precision do not normally appear) operates as res judicata, the substance and not the form of the entire proceedings is to be examined as a writ could be framed Mr A and Mr B while the evidence may show clearly that the fight was between family A and family B.
(4) The perusal of the proceedings in the Native Court case pleaded here as estoppell per rem judicatan clearly shows that the parties there to were suing on behalf of their families.
Chief R. O. A. Akinjide, (SAN) (with Mr A. Emiola) for Appellants
Mr K. Sofola, (SAN) (with M. U. Bazuna) for Respondents
Cases referred to:-
Adenle v Oyegbade (1967) N.M.L.R 130
Adeshoye v Oshiwonimu (1952) 14 W.A.C.A. 86
Adayi v Aina 16 N.L.R. 67
Alashe v Sanya Olori Llu & Ors (1965) N.M.L.R 66
Boadu v Fuso 8 W.A.C.A 187
Dinsey v Ossei & Anor (1939) 5 W.A.C.A
Kojo II v Bonsie & Ors (1957) 1 W.L.R 1223
Kunstler v Kunstler (1969) 3 All E.R 673
Mills v Copper (1967) 2 E.R 100
Nana Ofori Atta 11 v Nana Abu Bansra 11 (1958) A.C 95
Oluma v Tsutsu 10 W.A.C.A. 89
Powell & Wife v Streatham Manor Nursing Home (1935) A.C 243
Wytcherley v Andrews (1871) L.R. 2 P&M. 327
Aniagolu, J.S.C.-The appeal in this case is brought against the judgment of Kooffrey, J. (as he then was) in a writ filed in November 1972 by the plaintiffs as representing the family of Edoho in Afaha Eket against the defendants who were, in the course of the proceedings, authorised to represent the family of Idiong Ikpang in Ekpene Ukpa, Eket, all of the Calabar Judicial Division in which the plaintiffs claimed against the defendants, jointly and severally:
"(a) £500 damages for trespass on a piece of parcel of land known as and called "NDON EKPE ETOK" situate at Afaha Eket, Eket Division.
(b) Injunction to restrain the defendants, their servants and/or agents from further interfering with the plaintiffs' rights and possession of the said land."
Pleadings were filed eash side staking a claim to the ownership of the land through inheritance based on traditional history and upon positive and numerous acts of ownership allegedly exercised by each side over the land for some considerable length of time. In addition the plaintiffs had pleaded res judicata based upon proceedings tendered in evidence as Exhibit 2 which originated in the Eket Clan Court in 1942, being a suit in which "Chief Ndohose Edoho of Afaha Eket" sued "Ben Ikpang of Ekpene Ukpa" claiming as follows:
"Defendants to root out his crops from the plaintiff's land Ndun Ekpe Etok planted 1 month ago."
The defendant denied the plaintiff's traditional history and claim to long possession; maintained that the land had been in their possession from immemorial times and that they were living on the land; and averred that the land in dispute in 1942 upon which the plaintiffs relied for their plea of res judicata was an entirely different piece of land which
"had no relation whatever to the land now in dispute."
They further pleaded and maintained in evidence that the land having been compulsorily acquired by Government of South-Eastern State before the plaintiffs issued their suit, the plaintiffs' claim was therefore grossly misconceived since their interest after the compulsory acquisition could only lie in a claim to the compensation to be paid by Government and to the quantum of compensation payable.
The learned trial Judge heard the evidence of the parties and a considerable number of their witnesses which included, in the case of the defendants, a preacher (D.W. 5), a Native Doctor (D.W. 6) a Permanent Secretary (D.W. 7), and a Nightwatchman (D.W. 8). The trail Judge found against the defendants both as to traditional history and the issue of res judicata and also as to long possession. On traditional history the trial Judge held:
"I find therefore the traditional evidence of the defendants most inconclusive and unreliable. It seems to me that this land remained in the midst of Ekpene Ukpa with the distinctive name of Ndon Ekpe Etok and they have to weave history to lay claim to it on account of proximity. On the other hand I accept the evidence of traditional history of the plaintiff and hold that Ekpe Etok had no issues and was by the custome of Eket people succeeded by his half brother Akanimo who buried him. This explains how the plaintiff have held on to this land for such a long time even after the Eket-Oron road seems to have severed it from Afaha Eket. The presence of Afaha Eket villages or lands on the same side of the Eket/Oron according to the evidence of some of the defendants' witnesses shows that before that road, Ekpene Ukpa (defendants) had boundary with the land of the plaintiffs. It is true that the defendants have given a long list of name of successors to that land in dispute. I am not impressed. They appear to be mere names to create an impression and tilt to scale in their favour."
On res judicata the trial Judge held that the earlier judgment in Exhibit 2 was in favour of the plaintiffs for a declaration of title of ownership and that the parties, the subject-matter and the cause of action were the same in the present suit as in that earlier suit which terminated in a final judgment. He therefore ruled that the defendants were estopped per rem judicatam from reopening the matter.
On the issue of acts of possession the trial Judge found that the defendants for the first time entered the land in dispute in 1942 and this gave rise to the 1942 suit, Exhibit 2. In the course of the judgment the trial Judge found as follows:
"Even though the defendants have shown that they own the surrounding lands, they cannot explain why they waited till 1942 before they entered the land.
This fact of compensation does not weigh much if the defendants as stated in 1942 case, Exhibit 2 got permission from their Chief to invade the land in dispute. What could have stopped them from establishing themselves on the land more effectively before judgment? After all 1942 was 32 years ago or 30 years when the writ in this action was filed. The plaintiffs have said that the defendants rushed into their land and put up buildings immediately and when they could not stop them they had to come to Court. I accept this as true"
Concluding the judgment the trial Judge held:
"From the evidence before me and the law involved, I have no hesitation in coming to the conclusion that the plaintiffs were made the owners of the land by the judgments in Exhibit 2. They were therefore in possession or had a right to that possession at the time the defendants entered the land."
N2000.00 damages for trespass against the defendants with costs. He did not consider that the circumstances necessitated the making of an order for injunction.
The appellants filed two original grounds of appeal. These were later abandoned by their Counsel, Mr Emiola, who appeared for the appellants on the first day of hearing, having obtained leave of court to argue nine additional grounds which adequately covered those original grounds of appeal. The nine additional grounds of appeal read as follows:
"1. The learned trial Judge erred in law and misapplied the doctrine of res judicata in holding that Exhibit 2 operates as an estoppel between the Plaintiffs and the Defendants in the present case when the parties, issues, and the subject-matter in the present case are not the same as in Exhibit 2.
2. The learned trial Judge erred in law in accepting evidence of traditional history as given by the plaintiffs in support of their case when the plaintiffs pleaded neither their root of title nor the names of histories of their ancestors from whom their right of possession descended.
3. The learned trial Judge erred in law and misdirected himself on the facts in holding that the Defendants based their case on "long continuous stay on the land" and on "succession to Ekpe Etok Ikpong" (p.78) and thereby failed to consider the case of original settlement put up by the Defendants in the pleadings and in evidence.
4. The learned trial Judge erred in law in finding for the Plaintiffs when they failed to prove their possession of all or of any specific part of the land in dispute, and when there was an abundant evidence of continuous possession on the part of the Defendants for generations on the land in dispute.
"5. The learned trial Judge erred in law in not resolving the conflicts in the claims of the Plaintiffs and Defendants as to:-
(a) whether Ekpe Etok belonged to the Plaintiffs' family or to the Defendants' family, when there is evidence that the two families are not the same or related by blood;
(b) whether the said Ekpe Etok had any children or not; and
(c) whether the land in dispute is in fact in Afaha Eket or in Ekpene Ukap as claimed respectively by Plaintiffs and Defendants, when this was one of the central issues relevant to the just determination of the case.
6. The learned trial Judge erred in law in shifting the onus of proving that the land in dispute was part of the Ekpene Ukpa land when the onus lies on the Plaintiffs to prove not only that the land in dispute is their own but also to rebut the presumption raised by section 45 of the Evidence Act.
7. The learned trial Judge erred in law in not shifting the onus of proof on the Respondent since the appellant was in possession having regard to S.145 of the Evidence Law.
8. The learned trial Judge erred in law in not dismissing the Respondents case when the land had been compulsorily acquired by government at the time of the action
"and the only issue outstanding was that of compensation, if any.
9. The judgment of the trial is against the weight of evidence."
On resumption of hearing Chief R.O.A. Akinjide, S.A.N., appeared with Mr Emiola for the appellants. He argued grounds 8 and 1 in that order, after which he stated he would offer no argument in respect of the remaining seven grounds of appeal. These two grounds dealt, in Ground 8, with the legal effect of the compulsory acquisition by the Government of South-Eastern State of the land in dispute, on the competing claims by both parties for the ownership of the said land in dispute, and, in Ground 1, with the issue of res judicata.
Arguing Ground 8, Chief Akinjide referred to the acquisition notice contained in Gazette No. 6 Volume 6 dated 8th February 1973 which was tendered in evidence on Exhibit 4 and argued that the acquisition notice having been issued by Government before the filing of the writ in this case, the plaintiffs' claim for trespass and injunction in respect of the same land was inappropriate. Chief Akinjide sought and obtained leave of court, Mr Sofola, S.A.N., for the Respondents eventually withdrawing his objection, to amend his Ground 8 to read that the acquisition by Government was in respect of "part of" the land in dispute and argued that even assuming that only part of the land in dispute was acquired, a claim for trespass and injunction was still inappropriate.
The Plaintiffs' writ was apparently issued on 13th November 1972 almost about three months after the South-Eastern State Gazette Notice (Exhibit 3) No. 36 Volume 5 dated 24th August 1972 giving notice that the Government of South-Eastern State of Nigeria would acquire the land for public purposes, "from the day following the expiration of Six Weeks from the date of this Notice." The date of the Notice was 17th August, 1972. Therefore the Government was to enter into possession six weeks from 18th August, 1972. The purpose clause of the acquisition notice as stated as hereunder:
"NOTICE is hereby given that all that piece or parcel of land at Ekpene Ukpa, Eket, in the Eket Division of the South-Eastern State containing areas approximately 8.691 acres, 2,250 acres, and 9.866 acres respectively the boundaries of which are herein described are required by the Government of South-Eastern State of Nigeria for public purposes absolutely and in particular for establishment of Divisional Secretariat."
The Gazette then proceeded to describe the three sites 1, 2 and 3 where the Secretariat buildings were to be erected, "at Ekpene Ukpa, Eket Town, in Eket Division of the South-Eastern State of Nigeria" indicating concrete pillar boundaries in the original Eket Cadastral Surveys. Site 1 measured 8.691 acres, Site 2 2.250 acrea and Site 3 9.866 acres. The boundary description of Site 3 was, in a later Gazette No. 6 Volume 6 dated 8th February, 1973 Exhibit 4, later amended but the extent of the land acquired at that site remained the same as 9.866 acres.
The area of the land acquired by Government, (hereinafter called "the acquired land") is shown in the plaintiffs' plan, Exhibit 1, and is there-in verged yellow. The entirety of the land claimed by the plaintiffs and said to be the land in dispute is verged ping (or as stated in their plan "red"). The acquired land lies to the East of the said land separated from the rest of the said plaintiffs' land by a road marked in the plan as "Road under Construction." In the defendants' plan, the land they claim as theirs is verged Green and is a much larger piece of land than that claimed by the plaintiffs. The defendants have superimposed the plaintiffs' plan on theirs and have shown that the area claimed by the plaintiffs, including portion of the acquired land falls completely within the green verged area claimed by the defendants, with a portion of the land acquired by Government falling outside the area claimed by the plaintiffs but within the larger area claimed by the defendants. Since the claim before the Court was that of the plaintiffs, with no cross-action by the defendants, we are therefore concerned, for the purpose of Chief Akinjide's submissions on this ground of appeal, with that portion of the acquired land verged yellow-falling within the area verged pink in the plaintiffs' plan which formed only part of the total area (according to the defendants' plan) acquired by Government. Notice of acquisition of land for public purposes pursuant to the Public Lands Acquisition Law, Cap. 105 Volume VI Laws of Eastern Nigeria, 1963 (which applied to South-Eastern State) is given in accordance with Section 5 thereof which reads:
"5. Whenever the Minister resolves that any lands are required for a public purpose he shall give notice to the persons interested or claiming to be interested in such lands, or to the persons entitled by this Law to sell or convey the same or to such of them as shall after reasonable inquiry be known to him (which notice may be as in Form A in the Schedule or to the like effect)."
Six weeks interval is given for the vesting of the land in the Government from the date the Notice is given for the acquisition (Section 8(1)).
Section 8(2) of the Law provides that:
"At the expiration of such period the Minister and all persons authorized by him shall be entitled to enter into and take possession of such lands accordingly."
By Section 25 of the Law, the Government through the Minister, may at any time after the expiration of the six weeks, by ex-parte motion, apply to the High Court for a certificate of title to the whole or any part of the lands described in the Notice. The High Court is enjoined, under the section, upon proof of service and publication of the notice, to grant a certificate of title to the Government. Section 25 reads:
"The Minister, may at any time after the expiration of six weeks from the date of the service and publication of the notice mentioned in section 5, apply ex parte by summons to the High Court for a certificate of title to the whole or any part of the lands described in such notice and upon such application the court shall, upon proof of the service and publication of the said notice, grant a certificate of title as in Form D in the Schedule or to the like effect to the whole of the lands described in such notice or to that part thereof in respect of which the application is made, which certificate shall not be questioned or defeasible by reason of any irregularity or error, or defect in the notice or want of notice, or of any other irregularity, error or defect in the proceedings previous to the obtaining of such certificate."
Calculating from the 18th of August 1972 (the day following the date of the issue of the acquisition Notice) the Government would be entitled to go into possession of the acquired land on 30th September 1972, the six weeks period ending on 29th September 1972. The date on which the land vested in the Government was 30th September 1972, notwithstanding the day thereafter when the Court would have granted certificate of title to the Government in accordance with Section 25. It was apparently for the reason that the land in dispute had already vested in the Government before the issue of the writ on 13th November, 1972 that Chief Akinjide had urged on us the argument that the plaintiffs' claim for damages for trespass and injunction was inappropriate.
But the plaintiffs' claim was, according to the Statement of Claim, in respect of trespass said to have been committed by the defendants between 1967 and 1970. In paragraph 11 of the Statement of Claim the plaintiffs averred that-
"The defendants without obtaining the leave or authority of the plaintiffs broke into and entered upon the land in dispute during the civil war between 1967 - 1970 and build (sic) houses on the land in dispute and have threatened to continue with these and other acts of trespass thereon.
"Between 1967 and 1970" the plaintiffs were, according to the statement of claim and the evidence in support, exclusively in possession of the land in dispute. The Government had then neither acquired, nor given notice of its intention to acquire, nor had gone into possession of, any part of the land. It being an elementary principle of law that trespass is actionable at the suit of the person in possession, actual or constructive, at the time the trespass was committed, the plaintiffs were entitled to maintain an action for trespass in 1972 for trespass committed by the defendants "between 1967 and 1970", the action not having been barred by limitation of time and not otherwise rendered unmentionable. Even where the title of both the plaintiff and the defendant to a land in dispute was held to be defective as in ALHAJI FASASI ADESHOYE Vs. J. O. OSHIWONIMU (1952) 14 W.A.C.A. 86 the plaintiff who was in de facto possession of the land sustained his action in trespass against the defendant. When this basic legal principle was pointed to Chief Akinjide he readily conceded the point that the plaintiffs were entitled to maintain in 1972 their action for trespass committed by the defendants between 1967 and 1970. With this concession, we were obliged to strike out Ground 8 of the grounds of appeal.
Appellants' Counsel then argued the issue of res judicata based on the earlier proceedings in the Native Court, Exhibit 2. While conceding that the issues and subject-matter of that earlier case where the same as in the case on hand, Chief Akinjide strenuously argued that the parties were not the same. He pointed out that in Exhibit 2 the parties were:
"Chief NDOHOSE EDOHO of Afaha Eket AND
Ben Ikpang of Ekpene Ukpe"
In that earlier case, he submitted, the plaintiff did not sue, and the defendant did not defend, in a representative capacity but in the instant case taken out in the Calabar High Court, the case was prosecuted and defended in a representative capacity. He referred us to the finding of the Eket Clan Court at pages 12 to 13 of Exhibit 2 in which the Court held that:
"The Defendant cleared the Plaintiff's land Ndun Ekpe Etok and planted his crops. Defendant told the court he did so at the order of his Chief Odo Akpa. Chief Odo Akap when called told the Court that the Defendant and others came and told him that they wanted to go and clear the disputing land. He had agreed for them to go and clear it that the Plaintiff may from seeing it come and explain how he or they came to be the owner of the land. That was not a good way to claim title to the land. It was stated that the land Ndun Ekpe Etok was the property of the Plaintiff's grand father Akanimo since the death of Ekpe Etok their half brother. The evidences collected proved to us that the disputing land Ndo Ekpe Etok belong to the Plaintiff. Judgment for Plaintiff for his land Ndu Ekpe Etok.
Defendant to root out his crops from the said land in 3 days and pay 10 shillings costs to Plaintiff at once."
and argued that the tenor of that judgment showed clearly and convincingly that the suit was a personal action between the parties in which their families were not involved. Being a personal action and not a representative one and a declaratory judgment being discretionary, the learned trial Judge ought to have exercised his discretion refusing the declaration. He referred us to Kunstler v. Kunstler (1969) 3 ALL E.R. 673 at 675.
There was no evidence, he urged, that the family of the appellants knew of the case, Exhibit 2, nor was there evidence that they participated. He cited the decision of this Court in IDOWU ALASE and Ors. v. SANYA OLORI ILU and Ors. (1965) N.M.L.R. 66 and contended that the appellants, on the facts of this case, could not be held to have been caught by the principle of standing by and therefore estopped by their conduct from reopening the matter. Chief Akinjide agreed that the judgment of the Native Court which was restored by the Magistrate's Court in Exhibit 2 was in favour of the plaintiff/respondents in this appeal and conceded that if we found that the parties were the same then the appeal must be resolved in favour of the plaintiff/respondents.
If is fundamental law that to sustain a plea of res judicata in a case the party raising the plea must show that the parties, the issues and subject-matter of the current case are the same as in the previous case adjudicated upon by a court of competent jurisdiction before whom the proceedings terminated to finality. Put in another way, a final judgment already decided between the same parties or their privies on the same question by a legally constituted court having jurisdiction is conclusive between the parties, and the issue cannot be raised again. This is founded on a public policy which requires that interest reipublicae ut sit finis litium. Perhaps one of the best expositions of the principle is to be found in the speech of Diplock, L.J., in MILLS v. COOPER (1967) 2 ALL E.R. 100 at 104 who, while defining estoppel per judicatam stated that:
"This doctrine, so far as it affects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the other party, and assertion, whether of facts or of legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not be reasonable diligence have been adduced by that party in the previous proceedings has since become available to him."
But who the parties are, what the issues involve and what the subject-matter is, may not always be easy to determine especially in Courts, such as the Native Courts of old and the more recent customary courts, where lawyers trained in the art of drafting claims and settling pleadings with precision, do not normally practice. In those Courts another fundamental law has been worked out, over the years, in respect of cases therein determined. The guidelines have been settled in the following principles:
Firstly in respect of the claims before those courts it is necessary to look at the substance rather than at the form of the writ (KWAMIN BOADU v. KOBINA FOSU, 8 W.A.C.A. 187; OLUMA v. TSUTSU, 10 W.A.C.A. 89); one, therefore, should not examine those writs "microscopically" (UDOFIA v. APIA, 6 W.A.C.A. 216 at 218) or with the finery of a tooth comb;
Secondly, on the question of procedure adopted by those courts in arriving at their decision, subject, we must add, to the overriding principle that they must not be allowed to so fundamentally depart from accepted procedures in deciding their cases that they occasion injustice to either party to a case, an appeal court must not be too strict in regard to matters of procedure adopted in those courts (DINSEY v. OSSEI and Another (1939) 5 W.A.C.A. 177);
Thirdly, generally, great latitude must be given to, and a broad interpretation placed upon Native Court cases -and one may add customary court determine cases - so that the entire proceedings, the evidence of the parties and the judgment must be examined in order to determine what the Native or Customary Court case was all about (AJAYI v. AINA 16 N.L.R.67). The whole conception and result of the proceedings will show what the parties were fighting for, the matters upon which issues were joined, even if technically framed in an inappropriate language from the standpoint of legal technocrats, and the decision of the Native or Customary Court on those issues.
Where, for instance, the writ in a land case is framed between A and B the evidence may show clearly that in reality the fight was between the family or A and the family of B and that the claim, although framed in trespass, was in reality a fight as to the title of ownership of the land in dispute. In any case, it has long been recognised that in these land cases in this part of the world people usually spring to action once they feel that their interest has been affected and would immediately intervene and make their interest known to Court no matter in what from the claim before the court is framed and no matter how apparently innocuously joined the issues between the parties may appear to be. A rational explanation for this is to be found in the fact that in this part of the world land is usually owned communally and each and every member of a community realizing that he has a stake in a piece of land in dispute does not sit idly by while a contest is raging in respect of a piece of land in which he considers himself as having a legitimate interest - a contest the result of which may well determine, or substantially affect, his said interest. It was from long experience of land matters in West Africa that their Lordships of the Privy Council had formulated in NANA OFORI ATTA II v. NANA ABU BONSRA II (1958) A.C. 95 at 103 (also (1957) 3 ALL E.R. 559) the principle first stated by Lord Pensance in Wytcherley v. Andrews (1871) L.R. 2 P. & M. 327, 328 that-
"It seems to be the recognised thing in this part of West Africa for all persons with the same interest in a land dispute to range themselves on one side or the other. Sometimes they apply to be joined as parties. On other occasions they regard the named party as their champion and support him by giving evidence. If he wins, they reap the fruits of victory. If he fails they fall with him and must take the consequences."
It may now be regarded as established general principle that where a party, quite cognisant of the existence of court proceedings in respect of a piece of land, does not intervene or does not make it know that he has interest in the land, he must be deemed to have no interest in the land and therefore be indifferent to the outcome of the proceedings. Those who, in those circumstances, later lay claim to the land, or assert rights over it, are, more often than not, land cheats and speculators who make profits out of land litigations.
Bearing the foregoing principles in mind we now proceed to determine the appellant's submission on the issue of the parties in Exhibit 2. The claim before that court read:
"Defendant to root out his crops from the Plaintiff's land Ndu Ekpe Etok planted 1 month ago."
It is clear from the wordings of his claim that the plaintiff was claiming ownership of the land together with possession. We think it important to set out in detail the progress of the case right up to the High Court. Giving evidence in support of the claim, the plaintiff traced ownership of the land in dispute to his grandfather AKANIMO from whom the land descended to him. He swore that sometime that year (1942) he received information that the land was brushed for painting by the defendant. He then said:
"My people went and planted crops", Whereupon the defendant reported to the police who advised that the matter be taken to the Native Court hence he instituted the action in the Native Court. The plaintiff called three witnesses UKOI ASAM, EBUKIBA AQUATANG and CHIEF INO UDO EKING all of whom supported the plaintiff's evidence of traditional history.
The defendant gave evidence in defence. He chose not to talk about the ownership and preferred to leave the whole thing to the Head Chief of the defendant's village of Ekpene Ukpa. For its importance we reproduce the short evidence of the said defendant:
"DEFENDANT BEN IKPANG S/SI In the village of Ekpene Ukpa, we have our head Chief Odo Akpa. He ordered us all in the village to clear the land Ndun Ekpe Etok. If the Plaintiff wants the case of the land he should sue the Chief who is the owner of the land.xxd. by Plaintiff:
How many years now since we use to farm on the land from my grand father's time.
Ans: You may put the question to Chief Odo Akpa."
The Head Chief of Ekpene Ukpa, one Chief Odo Akpa, then gave evidence stating that his people of Ekpene Ukpa told him they wanted to go and clear the land in dispute and that he instructed them to go and clear it
"that I may hear from Afaha Eket people how they came about to take ownership of the disputing land"
After the said evidence of the said Head Chief the Court gave a unanimous judgment in favour of the plaintiff for the ownership of the land. The defendant applied for the District Officer's Review. The District Officer, Mr J.S. Smith, made the following Review Order:
"Defendant wishes to call more witness. As it was his fault that they may not come at the hearing; he must pay the original fee 5 shillings within 7 days that case be re-open or judgment stands"
Sgd. J. S. Smith. D. O.
15th April, 1942."
Following this Order another panel of the Eket Clan Court comprising eight members was set up and proceeded to try the case de novo. Before this new coram a great deal of evidence was called. The plaintiff gave elaborate evidence tracing how the land had been in his family's possession and how the defendants went and harvested palm fruits from the land. He said:
"My family got annoyed and going to Ikpang's house they seized a she-goat and 1 iron pot from Ikpang's house."
In the course of his evidence-in-chief he further stated:
"My brother sued Ikpagn to pay my elder brother #5 (five pounds) Ikpang then asked one Eden Udo Ubak and Eshiet Udo Ubak to take him before my elder brother to beg him to pardon him for the trespass he did on our land."
The plaintiff called three witnesses before the defendant testified elaborately calling five witnesses.
The Court was evenly divided, four members finding for the plaintiff while four found for the defence. Because of this deadlock, another District Officer, E. V. H. Toovey, ordered that the matter be heard by five arbitrators. The arbitrators heard the case and entered judgment for the defendant who by petition (as the law then stood) dated 6th August 1946, filed by his Counsel, Dr E. Udo Udoma, appealed to the Magistrate's Court.
The appeal was heard by His Worship Major Robert William McDowell Crockett, Magistrate, who set aside the judgment of the Arbitrators and restored the earlier judgment of the Eket Clan Court in favour of the plaintiff, Part of his judgment reads:
"A great deal of evidence was given in this case. I have carefully considered it and I find that the overwhelming weight of evidence is in favour of the plaintiff. In my opinion the findings of the Native Court in March 1946 was not in accordance with the evidence. It seems to me that the land in question is clearly the property of the Plaintiff's family. In the defendant's own evidence he admitted that plaintiff's predecessor in title had had exclusive enjoyment of the land and that he had taken no action in the matter. All the defendant's witnesses admitted that Plaintiff's family had undisputed possession for some unascertainable period. Two of defendant's witnesses said they knew nothing about the land as they lived far away. The evidence of another was purely hearsay. I am therefore of opinion that the Native Court was wrong and that their
"finding was against the weight of the evidence. I allow the appeal I restore (sic) the judgment of the Native Court of June, 1942."
The defendant appealed against this judgment of the Magistrate to the High Court of the Calabar. Judicial Division (then called Supreme Court). Both sides were represented by eminent Counsel, Onyeama and Okon for the defendant/appellant and Dr Udoma for the plaintiff/respondent. The appeal was elaborately and exhaustively argued by counsel. From the evidence of the parties before the various courts, the judgments of those Courts at different stages, and the arguments of counsel in the course of the appeals, it was abundantly clear, and we are satisfied on this, that the case was fought on the basis of the family of the plaintiff pitched against the family of the defendant and not a personal action between the plaintiff and the defendant. We are satisfied that from a careful perusal of the whole of the proceedings, the evidence of the parties and the judgments in Exhibit 2, the same parties who contested the case in Exhibit 2 namely the Edoho family in Eket as plaintiffs against the family of Idong Ikpang in Eket, both in Calabar Judicial Division, were the very parties in this case now on appeal. On the issue of parties the learned trial Judge held:
"I do not believe that the learned Counsel was seriously contending
"that the parties in the Native Court Suit No 46/42/78 are not members of the present plaintiffs' family and the 1st defendant in this case. Certainly the parties are the same and since the 1st defendant in that case showed quite clearly that he was defending the case in a representative capacity, the judgment in that case must affect members of the family or village which he represented."
We think that the learned trial Judge was right in his said finding which was entirely borne out by the evidence. The parties, the subject-matter and the issue being the same as in the previous proceedings, Exhibit 2, the learned trial Judge was right in holding that the defendants were estopped per rem judication from reopening the question of the ownership of the land in dispute which was adjudged vested in the plaintiffs.
Mr Sofola, S.A.N. for the Respondent, dealing with the issue of credibility of witnesses, referred us to the decision of the House of Lords in POWELL AND WIFE v. STREATHAM MANOR NURSING HOME (1935) A.C. 243 at 255 and 256 in which Lord Justice Atkin, in a mild rebuke, reproached the Court of Appeal for expressing strong views about the untruthfulness of one Dr Kirkland who was believed by the trial Judge and "whom no member of the Court of Appeal had seen giving evidence", pointing out that we own it as a duty, in all the circumstances, to accept the finding of the trial Judge in the case on hand, he having seen and heard the witnesses.
By way of rejoinder, Chief Akinjide cited the cases of T.A. KOJO II v. O.K. BONSIE ORS. (1957) 1 W.L.R. 1223 at 1226-1227 and ADENLE v. ONYEGBADE (1967) N.M.L.R. 136 and pointed out that on the question of traditional history the demeanor of witnesses may not be all that important as a witness may well be telling the truth about the story transmitted to him from his ancestors without the story necessarily being true. In Adenle (supra) this Court in dealing with traditional history observed:
"This case, however, was not a case where the defendant was speaking as to his own knowledge of past events but it was based on traditional evidence, in effect the hearsay evidence of his father. It was not, therefore, a case when the learned trial Judge said he preferred the evidence of the defendant where the demeanor of the witness was all important, as Mr Lardner for the respondent urged us to hold."
KOJO II v. BONSIE (supra) was referred to in ADENLE (supra) and the observation of Lord Denning was cited with approval in that part of his judgment where he stated:
"Their Lordships notice that the judges in the appeal courts, who were in favour of upholding the decision of the Asantehene's B Court, did so on two grounds: first, that it was a decision of fact depending on the demeanor of the witnesses and almost inviolable on that account. Second, that on a review of the evidence it was the correct decision".
So far as the first ground is concerned, their Lordships do not think it was the correct approach to this case. Their Lordships notice that there was no dispute as to the primary facts, that is, the facts which the witnesses actually observed with their own eyes or knew of their own knowledge in their own lifetime. The dispute wa all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard it must be recognised that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. 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 and by seeing which of two competing histories is the more probable. That is how both the native courts approached the matter and their Lordships think they were right in so doing."
The postulation, with which we entirely agree, is that a witness may well be truthfully telling the court, in traditional evidence, what his ancestors told him. His ancestors may in fact, have told him the story and the witness may well be reproducing accurately what they told him. But the story they told him may well be untrue. In other words, his ancestors may have told him lies. It is therefore for the trial court to determine:
(a) Did his ancestors in fact tell him that story?
(b) Is the story true?
In the instant appeal the trial Judge resolved those two questions in favour of the plaintiff/respondent. He accepted the traditional history of the plaintiffs, finding, as a fact, that Ekpe Etok had no issues as stated by the plaintiffs, and was by the custom of Eket people succeeded by his half brother, one AKANIMO, who buried him. From this AKANIMO, he found that, the land descended to the plaintiffs. The learned trial Judge was not impressed with the traditional history told by the defendants because it was not consistent with other facts in the case. He pointed out, for example, that the defendants were defending the action as if the land was a communal property of Ekpena Ukpa village stating that if the land belonged to the village he could not believe that it would have been so distinctly marked out from all other Ekpene Ukpa land for one thousand years when they claimed that they had been on the land. The trial Judge found that the land in dispute lies in the midst of Ekpene Ukpa with the distinctive name of Ndon Ekpe Etok and that the defendants "have to weave history to lay claim to it on account of proximity." Rejecting the story of the defendants, the learned trial Judge concluded thus:
"It is true that the defendants have given a long list of names of successors to the land in dispute. I am not impressed. They appear to be more names to create an impression and tilt the scale in their favour."
We find nothing in the record of proceedings to justify our interference with that finding.
In the result this appeal must fail. We hereby dismiss the appeal and affirm the judgment of the Calabar High Court in the Suit C/81/1972. The defendants/respondents are entitled to the costs of this appeal which we hereby award them in the sum of