Chief Sampson Okon Ito & Ors V. Chief Okon Udo Ekpe & Ors (2000)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

This appeal is against the judgment of the court below, wherein that court upheld the appeal of the plaintiffs/respondents in respect of the judgment of the trial court which was delivered in favour of the defendants/appellants. At the trial court the respondents claimed against the appellants for the following principal relief:-

“A declaration that they, the plaintiffs, are the radical/titular owners in possession of all that piece or parcel of land known as and called Esuk Ikotetuong (sometimes otherwise fictitiously and popularly nicknamed Esuk Ifiayong mostly by strangers to the area) and being a piece and/or portion of Idu land generally situate in Uyo Division of the Cross River State of Nigeria which Esuk Ikot Etuong aforesaid is as set out, described and/or otherwise delineated in the plan No. LSH 751 by E. Ekpenyong Esqr F.N.I.S. and licensed surveyor and dated 2nd November, 1969 being verged pink (which is the same as the one in Ita Plan No. LSH 1048/LD by the same surveyor and dated 20th June, 1977) and which came into issue in the Suit No. HU/2/69 (CI/69) between the real parties in the instant cast: but in the reverse order.

And as ancillary reliefs, the respondents claimed the sum of N10,000.00 as general damages for trespass and the further sum of N10,000.00 as special damages in respect of various acts of the appellants on the disputed land. Also claimed was an order of perpetual injunction restraining the appellants by themselves and/or their privies, agents, and/or servants from any further interference whatsoever/in any shape, form and/or manner with the respondents’ exclusive occupation, possession, use and/or enjoyment of Esuk Ikot Etuong

Following the order for pleadings the parties filed and exchanged their pleadings. The respondents with the leave of the trial court filed and served an amended statement of claim. In the statement of claim as amended, the respondents pleaded copiously several decisions of the courts between the parties before the instant suit. Among the decisions pleaded are: – (1) the decision by the High Court in Suit No. HU/2/69 (formerly No. C/1/69); (2) Decision on appeal there from by the Court of Appeal; and (3) Decision on further appeal to the Supreme Court. The respondents also pleaded four deeds of leases (Indentures), three of which were made with various companies between 1938 and 1939.

It is also pleaded that the deeds were executed with the approval of the appropriate authority. One of them was stated to have been executed with the Government of Nigeria in 1940. All the deeds pleaded were in respect of transaction affecting the disputed land. The respondents, also to further support their claim, pleaded traditional history to show how they became seised of the land. Similarly the appellants pleaded their traditional history, acts of possession and ownership to challenge the claim of the respondents to the disputed land.

The learned trial judge after hearing the evidence and addresses of learned counsel, dismissed the respondents’ claim. They, therefore appealed to the court below, and their appeal succeeded. It is against the judgment and orders of the court below that the appellants have now appealed to this court.

In the brief of argument filed on their behalf, five issues were postulated for the determination of the appeal. These are:-

“(1) Whether the Court of Appeal was right in holding that the respondents proved in the lower Court the identity of the land in dispute per se or vis-a-vis the subject matter of HUI2/69.

(2) Whether the Court of Appeal adopted the correct approach in its consideration of the appeal.

(3) Whether the Court of Appeal can properly raise the doctrine of issue estoppel on behalf of the appellants in the Court of Appeal when the said appellant did not raise the same either in the High Court or in the Court of Appeal.

(4) Whether the learned trial judge’s judgment should not stand in view of the totality of the evidence available at the trial.

(5) Whether the Court of Appeal was right in its finding that the defendants/ appellants were trespassers, thereby awarding damages and granting an injunction against them”,

For the respondents their learned counsel, AU. Ekpong, Esq, framed in the respondent’s brief the following issues for consideration in this appeal:-