Chief Nyong Etim & Ors V. Chief Ben E.A. Oyo & Ors (1978)
LawGlobal-Hub Lead Judgment Report
A. G. IRIKEFE, JSC
In this action, instituted at Calabar, in the Calabar Judicial Division of the High Court of the then South Eastern State, the plaintiffs (now respondents), claimed against the defendants (now appellants) as follows:- (1) A declaration of title that the plaintiffs are the titular owners in exclusive possession, occupation, enjoyment and/or use of all that piece and/or parcel of land known as or popularly designated Isong Ntekim (i.e., Ntekim Land) situate in Idua within the territorial jurisdiction of the above court – the said Isong Ntekim (i.e. Ntekim Land) will be set out, described in a plan which will be filed in this suit in due course.
PAGE| 2 (2) N600 (six Hundred Pounds) damages for trespass in that the defendants personally and/or by their servants and/or agents have since March, 1967, unlawfully entered upon the Isong Ntekim (i.e. Ntekim land) aforesaid then in the quiet and exclusive possession, occupation, enjoyment and/or use of the plaintiffs and maliciously destroyed and/or caused to be destroyed the plaintiffs farms thereon (i.e.), the different crops already planted thereon) them at different stages of cultivation and have since unlawfully remained in occupation of the same without the permission, let and/or consent of the plaintiff and in spite of the plaintiffs’ apposition to the same.
(3) an injunction to restrain the defendants personally and/or by their servants, agents and/or privies from any further interference with the plaintiffs in their exclusive and quiet possession, occupation, enjoyment and/or use of the said Isong Ntekim (i.e. Ntekim land) aforesaid.” Pleadings were ordered and exchanged between the parties. The respondents rest their claim of title to the disputed land, shown verged in pink in Exhibits 1 and 4 (produced at the hearing), on traditional history and user stretching back for some 8 generations.
They claimed to have been the first group of persons to settle on the land aforesaid and to have made an allotment of land to the appellants who came at later pointed in time. The appellants similarly maintained that they were the first to settle within the disputed area and that they had allotted a very small area shown verged in yellow on their plan (Exhibit 3) to an ancestor of the respondents to settle on, and on the very clear understanding that he and his family were to remain confined to the yellow area aforesaid for all time. The plan, Exhibit 3, produced by the appellants contains a tacit admission by them that the area of land put in issue by the parties in this case is identical.
A careful examination of all the plans produced at the hearing shows that, whereas the habitations of the respondents are admittedly within the land in dispute, those of the appellants are outside it, and some miles away. Both on the pleadings and the evidence, the parties appear agreed that they share a common boundary on one side. The main task among others, before the court of trial, was that of determining where this boundary actually is. The learned Judge (Koofreh J, as he then was), after hearing all the evidence, found for the respondents thus:- “There will be judgment for the plaintiffs against the defendants as follows that – (a) the plaintiffs are the owners of the land now called the ‘land in dispute in this action and verged red in Exhibits 3 and 4 of the plan filed by the defendants and the plaintiffs respectively and which the plaintiffs called “Isong Ntekim” and the defendants called “Uko Ukpe Ukpa”. (b) N600 damages for trespass on this land which the defendants admitted that they did and uprooted the crops of the plaintiffs which they made use of. (c) I impose an order of injunction against the defendant, their agents and servants and restrain them from further acts of trespass, molestation and interference with the land in dispute.”
This appeal is against the above decision. A number of grounds of appeal were filed, but learned counsel appearing for the appellants dealt with only four, namely – grounds 2, 3, 6 and 7. The said grounds read thus:- “2. The learned Judge erred in law in granting a declaration of title to the plaintiffs after having correctly found that the traditional history of how the plaintiffs came to acquire the land in question was unconvincing, there being no conclusive or preponderant evidence by any of the four witnesses who testified for the plaintiffs of acts of possession of the land in dispute by the plaintiffs numerous and positive enough to warrant the inference that they possessed it to the exclusion of the defendants, or other persons.
3. Of the four witnesses who testified for the plaintiffs, three, P.W.2, P.W.3 and P.W.4, stated clearly and unequivocally under cross-examination that they did not even know the boundaries of the land in dispute, and/or plaintiffs’ boundaries with the defendants. P.W.4 did not even know the land at all. 6. The learned Judge erred in law in holding that the plaintiffs sued and prosecuted the action in a representative capacity, although the approval of the court to do so as required by Order 4 rule 3 of the rules of the High Court of the South Eastern State had neither been sought by the plaintiffs nor granted by the court, and although the fact that any of the plaintiffs was the head chief of one or both villages, on whose behalf the suit was purportedly brought was not so expressed on the Writ of Summons or Statement of Claim as required by law.
7. Although the plaintiffs/respondents purported to sue the defendants/appellants in a representative capacity the plaintiffs neither bought nor obtained the approval of the court to do so or for the defendants to defend in a representative capacity as required by law.” Learned counsel appearing on behalf of the appellants took up the question of representation first. He argued that the appellants had failed to establish that any land was vested in them as a body. He was, however, prepared to concede that the issue as to capacity would appear to be academic, it, having been shown that the 1st respondent on the record was equally the head-chief of the two communities (i.e. AFAHA EDUOK and UKPATA), which the said respondents claimed to represent.
We, ourselves, are satisfied after a most careful scrutiny of the record that at no time were the parties in any doubt that these proceedings are intended to be binding on the parties and the communities spelt out on the face of the writ. It is, accordingly, our view that the action was properly constituted.
On grounds 2 and 3, learned counsel submitted that the evidence, such as it was, was insufficient to ground an award of title. He complained that the learned trial Judge had failed to properly evaluate the evidence and had apparently laboured under the mistaken assumption that the three witnesses who testified for the appellant had supported their case in saying that their WESTERN BOUNDARY was where it appeared on their plan. The truth, learned counsel further submitted, was that none of these witnesses knew where the boundary was, while one specifically did not even know where the land was. For the respondents it was submitted that while the evidence in proof of the Eastern, Northern and Southern boundaries could be regarded as satisfactory, the same could not be said to be true of the Western boundary. In the light of the above, learned counsel, with commendable candour, stated that he would not resist an order for a retrial of the case, provided that such a retrial was held before another Judge.
It seems plain to us that what is in controversy between the parties in this case is the exact location of the Western boundary of the respondent’s lands’ The appellants themselves conceded that only the respondents lived on the land in dispute which they described as being in front of their village. The learned trial Judge also found; rightly in our view, that the respondents were, and had always been in possession of the land in dispute and that the immediate cause of this action was the fact that the appellants invaded the respondents’ farms, unprooted the existing crops and sowed theirs on the land.
PAGE| 5 The three plans put in evidence (Exhibits 1, 3 and 4) reveal an identical land mass with the appellants in Exhibit 3 positioning their alleged boundary with the respondents more to the east. At the hearing, the respondents called in addition to P.W.1 (who is actually the 4th plaintiff on the record), P.W.2, P.W.3 and P.W.4. P.W.2 gave evidence on the Southern boundary while P.W.3 gave evidence on the Northern boundary. The testimony of P.W.4 could not have been o
Other Citation: (1978) LCN/2018(SC)
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