Oko Vs Ntukidem (2012)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C.

The plaintiffs sued (for themselves and on behalf of Ikot-Udo Village,) the defendants [as representatives of Ikot Ayan village] for :

(a) A declaration of title to all the two piece of land known as and called “Ndia Udot Ikot Udo” and Ndon Ubok Ikot Udo”, lying and situate in Ikot Udo within the Uyo Judicial Division of Cross River State.

(b) N1,000.00 damages for trespass; and

(c) Perpetual injunction against the defendants, their servants, privies and agents from further entry into the aforesaid piece or parcel of land or in anyway interfering with the plaintiffs’ rights and possession of the said land.

After pleadings were settled, the case proceeded to trial with each side adducing evidence in support of their averments at the end of which the learned trial judge, Akpabio, J. (as he then was) made the following findings:-

“I find from the survey plans tendered by both sides that the land in dispute is just one vast area of undeveloped farm land sandwiched between the villages of the plaintiff and defendants and with no building whatever on it. Both sides claim to have their juju shrines on it. That being the case, the crux of the matter would boil down to one question, namely – ‘who was the first to farm on the land? Both sides claim that their ancestors deforested the land. It looks, therefore as if the case for the plaintiffs has been evenly balanced by the case for the defendants, with no side stronger than the other, in which case the plaintiff should be non suited. There is however one piece of evidence which in my view has had effect of conclusively tilting the balance in favour of the plaintiffs, and that is the record of proceedings tendered by the plaintiffs as Exh. B Exh. B is a one page record of proceedings showing quite briefly that as far back as 1955 one Asuquo Edo of Not Udo (i.e. the plaintiffs’ village) (sic) to court claiming £50 damages for trespass to his 20 parcels of Ndon Ibot land …….. In other words, the 20 parcels of land in Exhibit B was part of the land claimed by the plaintiffs in this case ….. That being the case, it would mean that as far back as 1955 when the judgment in Exh. B was given, a member of the plaintiffs’ village had continued to be legally in possession at least of 20 parcels of land in the area now being claimed by the plaintiffs. It is a fact that the parties in Exh. B did not sue nor were they sued as representatives of their respective villages. But the fact remains that the plaintiff in this case was from the plaintiffs’ village, while the defendant was from the village of the present defendants and the land in question was also part of the Ndon Ubok land now being claimed. While this cannot operate as an estoppel per res judicata against the defendants, I nevertheless uphold the submission of learned plaintiffs counsel, on the authority of Ababio v. Priest-in-Charge Catholic Mission, 11 WACA 380, that it can certainty operate as evidence of possession ……… Once I believe this, I am bound to believe also that the plaintiffs were also in possession of the land on the opposite side of the road known as Ndia Udot……………………….. The important point is that traditionally rivers are always used as natural boundaries between the two people. But it is not so in the defendants’ plan.

In effect therefore, I believe that the features shown on the plaintiffs’ plan approximate more to the truth than those shown on defendants’ plan, in view of the decision in Exh. B. I also hold that plaintiffs were fully in possession of the two piece of land known as Ndon Ubok Udo and Ndia Ikot at the time of the alleged trespass.”

The learned trial judge after making the findings (supra) granted the reliefs claimed by the plaintiffs.

The defendants appealed to the Court of Appeal, Enugu Division, against the decision. The Court of Appeal, after considering the argument presented by both sides, concluded thus-

“This appeal quite rightly turns around the very narrow pivot of the ill use that the trial judge made of Exhibit B and as it was on the basis of this fact more than anything else that he found the plaintiffs’ case established, this appeal is bound to succeed as it has been shown that this Exhibit B cannot properly be foundation for the plaintiffs’ case. I have dealt with this question previously, and it, with other reasons I have shown in this judgment, has led to my conclusion that this appeal succeeds and is allowed.”

PAGE| 2

The plaintiffs have now appealed to this court. Henceforth the plaintiffs would be referred to as the appellants, while the defendants would likewise be referred to as the respondents.

With the Notice of Appeal, the appellants filed three grounds of appeal. Briefs were filed and exchanged. In the brief filed by the appellants, the following issues were raised for determination:-