Ntoe Edet Etim Omin & Ors V. Usang Ita Etim & Ors (2002)

LawGlobal-Hub Lead Judgment Report

OLAGUNJU, J,.C.A. 

The appeal is from the decision of Ita, J., of Calabar Judicial Division of the Cross River State High Court, dismissing the appellants’ claims for trespass on Ikot Omin land, N50,000 damages and perpetual injunction restraining the respondents ‘from continuing or repeating the acts’ of trespass.

Upon the parties’ pleadings, the bone of contention was whether as claimed by the plaintiffs, the land in dispute is the communal property of Ikot Omin people or as contended by the defendants/respondents, it is the property of the family of the 1st defendant/respondent, who deforested the land in dispute, which through the line of succession devolved upon him after his father’s death. At the trial, the argument wound round the custom regulating the acquisition and ownership of land in Ikot Omin and the typical types of tenure known to the customary law of the area. After examining the pleadings of the parties and the evidence led thereon the learned trial Judge held that he was ‘not satisfied that the plaintiffs (had) proved their case’ and dismissed the plaintiffs’ action.

Dissatisfied with that decision the plaintiffs/appellants filed a notice of appeal with 7 grounds of appeal including an omnibus ground from which the following 7 issues were formulated in the appellants’ brief of argument:

“1. Whether root of title to land was established in the community by the plaintiffs and if so did the onus shift to the 1st defendant to prove individual land holdings by deforestation of communal land?

2. Whether the learned trial Judge properly evaluated the evidence of the parties by placing same on an imaginary scale to see which was heavier before making findings of fact on them?
3. Whether it was necessary to substantiate evidence of customary grant of land to the original 1st defendant for residential purpose by the Ntoe with the consent of principal members and family heads by documentary evidence?
4. Whether exhibits 4 and 2 are not in support of communalland tenure system in Ikot Omin?
5. Whether the learned trial Judge was right in formulating an issue not raised in the pleadings or supported by evidence?
6. Whether the plaintiffs proved their case on the preponderance of evidence?
7. Whether the learned trial Judge was right in regarding the amendment of the amended statement of defence as correction of a typographical error and in line with evidence that had been given?”

Judging from the substance of the complaints in the grounds of appeal with their prolix particulars, I find the number of issues formulated to be wordy and overblown for I can see practically no difference between issues 2 and 6 anymore than I can see as nothing, but sheer elongation of issues 1 and 2 their co-existence with issues 3 and 4 for the very concept of placing evidence on an imaginary scale involves the entire plenitude of the adequacy of evidence on the root of title and substantiating evidence of grant of customary tenure by the overlord which calls for examination, per force, of evidence of communal land tenure in Ikot Omin. Therefore, in order to obviate repetitiveness of matters which are necessary to be examined, it has been found necessary to harmonise the 7 issues formulated by the appellants with the 3 issues formulated by the respondents that have the distinctive feature of conciseness. To this end, issues 1, 2, 3 and 6 in the appellants’ brief of argument would be taken together with issue (1) formulated by the respondents in their brief which reads:

“Whether the appellant, by the evidence available to the trial court established a root of title in the Community to ground their claim for trespass and injunction.”

Similarly, issues 5 and 7 in the appellants’ brief would be examined along with issue (ii) formulated by the respondents contending

“Whether the findings made by the trial Judge were grounded on a proper evaluation of the evidence before him.”

Issue 4 in the appellants’ brief is co-extensive with issue (iii) in the respondents’ brief of argument canvassing “Whether the trial Judge rightly rejected or refused to act on exhibits 2 and 4”. and they will be taken together.

Arguing issue one against the background of the material facts in the statement of claim and the testimonies of the appellants’ two top witnesses, learned Counsel for the appellants traced the history of Ikot Omin as having been founded by the plaintiffs/appellants’ ancestors, who came from Mbakang near Cameroun and were the first to settle on the land in dispute’. He narrated the land-owning system in Ikot Omin where, according to him, ‘land is owned communally, but individuals may however, deforest and use farmlands’ emphasizing the overriding interest of ‘the town’ which may withdraw such farming or users’ rights if the interest of the town so demands.

He underlined the role of Ntoe or Head of the Town in the operation of land systems, as one who ‘holds communal lands in trust for the community and can only alienate or grant land to individuals with the consent of principal members and family heads’.

In exercising that power, the appellants granted land to tenants for farming or building houses and also granted land to Government establishments and the subsidiary of a limited liability company.

The beneficiaries of the grant, according to the learned Counsel, included ‘the original 1st defendant’, i.e the predecessor-in-title of the 1st respondent, who was granted the land on which he built his house by the appellants though, he later trespassed on neighbouring lands by making grant of land to others when he had no right to do so. The learned Counsel switched over to summarise the material facts of the statement of defence and the evidence led thereon and argued that the 1st respondent, who testified that the land in dispute was not granted to him by the community, but was an inheritance from his ancestors through his father did not lead evidence to prove the customs, but only relied on exhibits 8, 9 and 10 to show that the 1st appellant ‘granted land to people in his individual or personal capacity’. He contended that the 1st respondent, who admitted that there was communal lands in lkot Omin did not show how those lands came to be communal and reasoned as if individual could merely acquire title to land by deforesting the land ‘without recourse to the community’.