Chief Ndarake Akpan & Ors. V. Chief Udokang Umo Otong & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

In the High Court of Cross River (now Akwa-Ibom) State holden at Uyo in Suit No. HT/24/73 the plaintiffs, herein appellants, commenced an action against the respondents then defendants, claiming the following reliefs:-

“(1) A declaration of title to all that piece or parcel of land known as and called “Abasi Uta Ikot Ekpe” situated, lying and being at Ikot Ekpe in Ibiono, Itu Division within the jurisdiction of the Ikot Ekpene Judicial Division interferred with by the defendants about six months now.

(2) The sum of N1,000.00 as damages for trespass, committed by the defendants, their servants and/or their agents on the said piece of land by clearing it, digging it and planting oil seedlings a few weeks ago.

(3) An order of injunction restraining the defendants, their servants and/or their agents from further entering into the said piece of land and from repeating the said acts of trespass on the land”.

After pleadings were ordered, filed and exchanged by the parties, the case went to trial. The trial court (coram: Nkop, J. as he then was) in a considered judgment delivered on 28th June, 1988 found in favour of the appellants in the following terms:-

“1. I hereby declare that the plaintiffs are entitled to a statutory/customary Certificate of Occupancy to all that piece or parcel of land known as and called “Abasi Uta Ikot Ekpe” situated, lying and being at Ikot Ekpe in Ibiono, Itu Local Government Area, within the jurisdiction of this Honourable Court. The boundaries are as per plan No. ESA/505(L/L) dated 3rd January, 1974 or Exhibit’ A’.

2. It is hereby ordered that the defendants pay N800.00 (Eight hundred Naira) damages for the trespass committed by them on the said land.
3. The defendants, their servants, and/or their agents are hereby perpetually restrained from further entering or entry into “Abasi Uta Ikot Ekpe” land and from further repetition on the said or any other acts of trespass on the said land.
4. The plaintiffs had attended courts both at Ikot Ekpene and Uyo High Courts for three months short of fifteen years. This, in addition to their filing fees and out-of pocket expenses entitles the plaintiffs to costs of this action which I assess at N500.00 (five hundred naira).”

The respondents were dissatisfied with this decision and they accordingly appealed to the Court of Appeal, Enugu Division (hereinafter referred to as the court below) which held in its judgment delivered on 8th December, 1989 inter alia as follows:-

Firstly, that the learned trial Judge was wrong in several particulars, particularly in his evaluation of the evidence adduced before him when he adopted “irrelevant considerations” which were prejudicial to the respondents’ case.

Secondly, that the learned trial Judge wrongly placed the burden of proof on the respondents.

Thirdly, that he relied without good reasons on a previous native arbitration about which the respondents were not a party and Fourthly, that he wrongly preferred or gave no justifiable reason for preferring the features e.g. the market, in the appellants’ plan to those on the respondents plan when none of the surveyors gave evidence.

The court below finally ordered a retrial, instead of either dismissing or allowing the respondents appeal, simpliciter.

The appellants being aggrieved with the judgment of the court below have appealed to this court on five grounds contained in a Notice of Appeal dated 10th February, 1990. Except for recasting their third issue, the respondents would appear clearly to have adopted the appellants’ three issues submitted for the determination of this court which are:

1. Whether the Court of Appeal has the jurisdiction to re-hear a matter before it on appeal, in part or in whole as if the matter had been instituted before it as a court of first instance and to evaluate evidence and make findings and inference like the trial court.
2. Whether a party, in a land matter, relying on three ways to prove his title to the land need prove all the three ways in order to succeed.
3. Whether in a case for declaration of title to land, where parties rely on Survey Plans, the surveyors must testify as of necessity before the court can attach credibility to the survey plan.”

As the only distinction between the three issues each of the parties to this case has submitted as arising for determination of the appeal lies in the respondents’ issue 3 which although composite and comprehensive, I will nonetheless adopt the appellants’ three issues in my considerations of the appeal herein.