Oqua Otop Asi Abang V. Effiom Okon Effiom & Ors (1976)

LawGlobal-Hub Lead Judgment Report

SOWEMIMO, J.S.C.

This is an appeal against the judgment of the High Court of South-Eastern State delivered at Calabar on 27th September, 1972. The plaintiff’s writ was issued against the 1st defendant but in the course of the proceedings the 2nd, 3rd and 4th defendants were joined as representatives of the Idundun people with descriptive title of Ntoe of Idundun.

The 3rd and 4th defendants are family heads and elders of the Idundun Community. They were joined because they leased the property to the 1st defendant. This case is Suit No. C/33/1969 tried at Calabar and the plaintiff’s claims for damages for trespass and injunction were dismissed. The writ of summons reads:

Statement of Claim

1. “The defendant by himself, his servants and/or agents between the months of July and August, 1969 broke and entered certain land of the Plaintiff at CANAAN OQUA OTOP in Calabar, destroyed Plaintiff’s economic trees, his farms and other farms of his tenants, cleared a portion of the said land for building and planted palm seedlings on part of the land.
2. The Plaintiff has suffered damages and claims:

(1) Damages limited to 5,000 pound (five thousand pounds)

(2) An injunction to restrain the defendant by himself, by his servants or agents or otherwise, from continuing or repeating any of the acts complained of or at all”.

The relevant portions of the pleadings on which either party fought the case read:

1. “The plaintiff is of the Qua tribe in Calabar Division and is a grandson of Awo Okang who was a royal daughter of the Namburi ruling family in Idundun.
2. Idundun is one of the Qua Towns in Calabar and lies East of the Qua river. Idundun has two ruling families, the Namburi family from where the Plaintiff comes and the Isongo Iseri family.
3. Plaintiff is a fisherman and farmer and about 36 years ago, during one of his fishing trips discovered that there was plenty of fish around the area now known as Canaan Qqua Otop.
4. Plaintiff decided to settle on Canaan Oqua Qtop then a virgin bush and approached the Ntoe (head chief) of Idundun who was then Ntoe Edim Ita. Ntoe Edim Ita granted the said land to the Plaintiff who made customary payments to the Ntoe and Chiefs of Idundun. Plaintiff also gave customary drinks.
5. The land known as Canaan Oqua Otop is shown verged pink on Plan No. ISH/757 dated 26th February, 1970 prepared by Mr. E. Ekpenyong licensed surveyor and attached to this Statement of Claim.
6. The boundary of the said land was shown to the Plaintiff by a leading Chief of Idundun the late Namburi Mboto on the instruction of the Chiefs and people of Idundun. Plaintiff has boundary with Obarekai on the north-east, Esit Ikot Inameti on the east, Ikot Edem Itu on the south, Esin Ufot on the south-east and Sabanka and Ikpa Idundun on the west and north.
7. The name Canaan Oqua was given to the land by the plaintiff who named it after himself and this name is found in the official map of Calabar Division with its identity separate and distinct from Idundun.
8. According to Qua Native Laws and Custom a son who develops a virgin bush stands possessed of the said bush for all purposes subject only to the ultimate reversionary rights of the original town such as is case with Canaan Oqua Otop which is in the possession of the plaintiff subject only to the reversionary rights of Idundun town which reversion can only take place when the line of the plaintiff ceases, or is extinct.
9. The Plaintiff developed and built up the said land into a village which now houses may (many) tenants of the plaintiff. These tenants of the plaintiff are still on the land and their houses are shown on the plan No. ISH.757 afore-mentioned.
10. Plaintiff has planted a number of economic trees like rafia wine, palm trees, kolanut trees, orange and pear trees. Plaintiff also plants seasonal crops and leases out portions of the land for planting purpose to his tenants. Plaintiff has been in undisturbed possession since about 1934 until the defendant went on the land which is the subject matter of this action.
11. Between the months of July and August, 1969, the defendant by himself, by his servants and agents broke and entered the area verged Yellow on the Plan attached to this Statement of Claim and demarcated 53.97 acres for himself, cut down and destroyed several economic trees, of the defendant including banana trees, plantain trees, palm trees,and kolanut trees. Defendant also destroyed plaintiff’s farms and those of plaintiff’s tenants. The area verged Yellow destroyed by defendant (cause of action) was fully cultivated by plaintiff and his tenants and there are buildings of plaintiff’s tenants on the land in dispute.
12. The area verged yellow on plan NO.ISH 757 aforesaid is the land in dispute.
13. Plaintiff’s village known as Canaan Oqua Otop of which the land in dispute forms part is recognised by Idundun as a separate village.
14. The defendant intends to continue the said trespass unless restrained.
15. The Plaintiff has suffered damage and claims as follows:

(1) Damages limited to 5,000 pounds (five thousand pounds).

(2) An injunction to restrain the defendant by himself, by his servants or agents or otherwise,from continuing or repeating any of the acts complained of or at all.”

Statement of Defence

3. (a) “In the said IDUNDUN VILLAGE COMMUNITY (Kwa) there have always from time immemorial been recognised two traditional ROYAL FAMILIES, namely:

(i) The NAMBURI MBOTO ROYAL FAMILY and

(ii) The KPARIK ABASI ROYAL FAMILY

There does not exist and/or has never existed at any time in the IDUNDU VILLAGE COMMUNITY (Kwa) aforesaid any Isogo Iseri as a family as stated in Para.2 of the STATEMENT OF CLAIM or by way of any other identity, or at all.

(b) The PLAINTIFF does not hail from the Namburi Family in IDUNDUN VILLAGE (Kwa) aforesaid (as stated in Para.2 of the STATEMENT OF CLAIM) of which the 2nd of the 2nd defendants is the current head.