Chief Etim Usung & Ors V. Chief Inyang E. Nyong & Ors (2009)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the judgment of E. R. Nkop, C. J., in Suit No. R/2/1979 delivered on 21/5/06.

The appellants, hereinafter called the Iquitas, claimed damages for trespass and injunction against the respondents jointly and severally for trespassing into two contiguous portions of their land, the title to which they won against the Iduahs in a 1930 case.

At page 113 of the record, the appellants claimed at paragraph 11 of their further amended statement of claim as follows:

“The plaintiffs therefore claim against defendants jointly and severally for themselves and on behalf of Iquita village as per writ of summons:

(a) N500,000.00 for trespass in that in recent years and particularly, after the civil war, the defendants, by themselves and/or agents/assigns and privies, broke and entered two contiguous portions of Iquita land verged PINK and YELLOW on the plaintiffs’ Plan filed herewith call UKO URUE-MON and UKO-EYUKIM which are in possession of the plaintiffs; and

(b) Perpetual injunction to restrain the defendants, by themselves, their workers, servants, privies and assigns from further acts of trespass on the said land.”

In furtherance of the claims, the appellants called three witnesses including the first appellant. The respondents called seven witnesses. PW1 was recalled by the appellant at pages 229 – 236 of the record. At the close of hearing, the counsel for the parties filed written addresses. The trial Judge gave judgment against the appellants and in favour of the respondents. Dissatisfied with the judgment of the trial court, the appellants appealed to this court on 6 grounds. The appellants in their amended brief of argument dated 16/1/09 and filed on the 27/1/09 formulated 6 issues for determination and they are as follows:

“1. Whether the Iquitas can bring a successful action for trespass against the Eyo Abasi people without a prior judgment for declaration of title?

2. Whether the court below was right in holding that Iquitas’ Exhibit “A” was copied from Exhibit “F” and that Exhibit “M” of the Eyo Abasi people was more realistic and natural?

3. Whether Exhibit “A” is a true representation of the land in dispute?

4. Whether the order in Suit No. R.14/1930 that the services of a Surveyor be enlisted to produce PLAN herein Exhibit “F” depicting the boundaries in Exhibit “E”, was complied with?

5. Whether the judgment in Suit No. R. 14/1930 (Exhibit “E”) between the Iquitas and the Iduas was binding on the Iduas thus creating an estoppel against relitigating the same issues all over again?

6. Whether the court below properly evaluated the totality of the credible evidence both oral and documentary adduced before it in arriving at its judgment?