Chief Aqua Edem Archibong & Ors. V. Chief Asuquo Itong Ita & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

This is a representative action. It is between two communities in Cross River State. Ikot Iwang is one. The other is Ifiang Nsung and Ifiang Oyong. They share one name in common. It is Akpabuyo. The two communities have been in litigation for over eighty-eight years. This would appear to be the third case on record. The first one was decided in 1915. The trial Judge was Webber J., The judgment of the court is exhibit 9. It was delivered on 22nd February, 1915. The second one was decided on 3rd November, 1941. The trial Judge was Martindale, J. The judgment of the court is exhibit 2. In exhibit 9, representatives of the appellants filed an action against representatives of the respondents for a declaration of title to Isong Ifiang or Aqua Ubom. Webber, J., in his judgment, held thus:

“In this case I find from the evidence that the land in dispute called Ifiang Nsun or Aqua Ubom and including the beach land called Esuk Okon has always been and is the property of the plaintiff and the people of Ifiang Nsun who are entitled to the declaration claimed. The land has however been occupied by the defendants for a considerable period. The plaintiff states that the defendants’ people were permitted to farm on the main land and to reside on the beach land. This action was brought about principally on account of encroachments made by the defendants’ people at the beach. It is impossible to state definitely what was the extent of trespass committed by the defendants, if any at all was committed. The court therefore refuses to award any damages for trespass. The defendants and his people shall be permitted to occupy the beach land, the occupation of which according to their own evidence extended 200 yards along the bank of the river, and ‘be mile inland. As to the main land, the defendants having disputed the ownership of the land will not be permitted to farm on the land in future without the permission of the plaintiffs.”

In exhibit 2, suits No. C/1/1940, C/5/1940, C/6/1940 and C/30/1940 were consolidated. In the consolidated case, the plaintiffs, the respondents in this appeal, claimed two declarations as tenants to continue to occupy Ikot Iwang land, rendering of account in respect of moneys collected from strangers, damages for trespass and injunction to restrain the defendants, the appellants in this appeal, their agents and servants from interfering with the plaintiffs in the exercise of their rights as tenants and occupants of the said land. Martindale, J., gave the following judgment:

“Judgment therefore in C/1/1940 is entered for the plaintiffs for the injunction they seek against the 1st defendants to restrain the 1st defendants, their agents and servants from interfering with the plaintiffs in the exercise of their rights as tenants and occupants of the land known as Ikot Iwang and for a declaration that as tenants of the 1st defendants under Native Law and Customs they, the plaintiffs are entitled to continue to occupy the said land and together with the 1st defendants to cut palm nuts on the land without let or hindrance from the 1st defendants, and for an account from the defendants of all moneys received by the 1st defendants from 2nd defendants by way of rents, presents and/or tributes for cutting palm nuts on the said land; payment over to the plaintiffs of one half of such rents, presents or tributes the 1st defendants counter-claim is suit No. C/5/1940 fails … The plaintiffs’ counter-claim against the 2nd defendant succeeds … ”

In suit No. C/81/77, the present suit, filed at the High Court of Cross River State, Calabar, the respondents in this appeal, as plaintiffs, claimed the following reliefs:

“1. A declaration that the plaintiffs are traditionally and legally entitled as of right to be made a party in any formal deed of agreement touching and concerning any part of the forest or palm plantation lands at Ifiang village and Ikot Iwang village which Ifiang community and Ikot Iwang community respectively have traditionally enjoyed together in common from time immemorial.

OR ALTERNATIVELY:

A declaration that any purported deed of agreement to alienate the communal forest or palm plantation lands at Ifiang or Ikot Iwang by the defendants unilaterally without the participation of the plaintiffs is invalid and void against the plaintiffs who have a common right of enjoyment thereof with the defendants from time immemorial.

2. An Order directing the first defendant to pay over to the plaintiffs the sum of E1,500 being money held in trust by the first defendant for the benefit of the plaintiffs since 1959 and being the plaintiffs’91 share of the E3,000 which the first defendant received for and on behalf of both Ifiang community and Ikot Iwang community as rent from the Danish company which operated under a lease of part of the forest land at Ifiang belonging in common to Ifiang and Ikot Iwang respectively from time immemorial covered by survey plan No. EY/SP172 dated 21/9/57 prepared by Okon E. Eyo, Esq., Licensed Surveyor.
3. An Order directing the defendants, in particular the first defendant, to account for all rents and incomes received for leases or sales of any part of the common forest or palm plantation lands or economic trees at Ifiang and or Ikot Iwang by the defendants without the knowledge and consent of the plaintiffs with effect from 1st January 1959 up to date.
4. An Order for perpetual injunction restraining the defendants or their agents from further acts of unilateral alienation of any part of the common forest or palm plantation lands or sale of economic trees at Ifiang or Ikot Iwang to which the plaintiffs are lawfully entitled to enjoy in common with the defendants without first obtaining the consent of the plaintiffs to do so.”

After hearing evidence, the learned trial Judge, Effanga, J., dismissed the plaintiffs’ claim. He said in the concluding paragraphs of his judgment:

“I am satisfied that the plaintiffs failed to adduce any credible evidence to support their claims and I am convinced that the claim of the plaintiffs is speculative, misconceived, and lacks merit. On the other hand, I prefer the evidence of the defendants, which is credible and more probable than that given by the plaintiffs, and when put on the imaginary scale completely outweighs the evidence of the plaintiffs. See Mogaji and Ors. v. Odojin and Ors. (1978) 4 SC 91 and 95.

On the whole the plaintiffs’ case must fail. I hereby dismiss all their claims in this case.

Dissatisfied, the respondents as appellants filed an appeal at the Court of Appeal. That court gave them judgment. In his leading judgment, Akintan, JCA, declared:

“It is accordingly declared that the plaintiffs in this case are traditionally and legally entitled to be made a party in any formal deed of agreement touching and concerning any part of the forest or palm plantation lands at Ifiang village and Ikot Iwang village which Ifiang community and Ikot Iwang village have traditionally enjoyed together in common from time immemorial. The alternative claim for an order directing the 1st defendant/appellant to pay over to the appellants the sum of E1,500 being appellants share out of the rent collected by the respondents in 1959 in respect of the lease jointly executed by the parties in favour of the Danish Agricultural Company cannot be granted as the claim is statute barred. An order for perpetual injunction restraining the respondent from unilateral alienation of any part of the aforementioned common forest at Ifiang or Ikot Iwang is unnecessary having regard to the declaratory order already granted to the appellants above.”