Ben Ikpang & Ors. V. Chief Sam Edoho & Anor (1978)

LawGlobal-Hub Lead Judgment Report

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 Pounds damages for trespass on a piece or 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, each 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 defendants 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 trial 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 custom 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 the 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 follow:

“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.

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