Chief Samuel Akpan Nkanu & Ors. V. Chief Robert Onun & Ors. (1977)

LawGlobal-Hub Lead Judgment Report

SIR UDO UDOMA, J.S.C.

This is an appeal from the High Court of the Cross River State, Calabar Judicial Division, Holden at Calabar. It is against the judgment of the High Court dated 4th March, 1975 given in a consolidated action.

In Suit No. C/10/1972, Chief Samuel Akpan Nkanu and Chief Ennang Edogi for themselves and as representing the people of Igbo Imabana claimed against Chief Robert Onun for himself and as representing the people of Assiga (Ayiga) and Chief Uket Okoi for himself and as representing the people Ekuri, the following:-

“1. A decaration of title to all the several pieces or parcels of land known as and called “Likpanko”, “Kepotodo”, “Ekpolo-Ito”, “kekpakola”, “Ito-Emego”, “Kokobili”, “Leveba”, “Alolibo”, “Igoli”, “Alolibo”, and “Edeligbo” respectively situate at Igbo Imabana in Obubra Division of the South Eastern State of Nigeria which is within the Calabar Judicial Division.”

“2. 300 Pounds general damages for trespass in that sometime in 1971 and again January, 1972, the Defendants without leave or licence of the Plaintiffs broke and entered parts of the several pieces or parcels of plaintiffs’ lands, brushed same with a view of planting on them.”

3. “A perpetual injunction to restrain the Defendants, their people, their servants, agents and all other persons claiming through them from interfering with the plaintiffs’ possession, enjoyment and use of the several pieces or parcels of land.”

And in Suit No. C/19/1972 Chief Robert Onun and Chief Uket Okoi for themselves and as representing the people of Assiga (Ayiga) and Ekuri turned round and also claimed against Chief Samuel Akpan Nkanu and Chief Ennang Edogi for themselves and as representing the people of Igbo Imabana as follows:-

“1. DECLARATION of title of ownership to all the continuous pieces or parcels of land known as and called “Esenaden”, “Ebiden”, “Ekosonade”, “Odiokpone”, “Apilowi”, “Livako”, “Kesekola”, “Osegwa”, “Akama”, “Likpanko”, “Ekolikunide”, “Okolikili”, and “Gawene” respectively situate at Ayiga and Ekuri in Obubra Division within the jurisdiction of this court.

“2. 500 Pounds General and Special damages for trespass in that the Defendants on January, 1964 and April, 1964 and on 29th February, 1972 and 1st March, 1972 acting in concert broke and entered the said piece of land and cleared portions of the land, cultivated the same planting crops thereon and cut down palm trees and raffia branches from raffia palms on the land.

“3 A PERPETUAL INJUNCTION restraining the Defendants from entering the said pieces or parcels of land in any other manner whatsoever interfering with the said pieces and parcels of land without the consent of the plaintiffs.”

In obedience to orders of the High Court made in that behalf pleadings were duly filed and delivered in each case. As part of their defence, the defendants in Suit No. C/10/1972 raised in their Statement of Defence the special pleas of res judicata, estoppel, laches and aquiescence, ownership and long continuous possession in answer to the averments contained in the Statement of Claim filed by the plaintiffs therein. No such pleas were raised by the defendants in Suit No. C/19/1972. On 3rd December, 1973, after the close of pleadings both suits were by consent consolidated and heard together. The plaintiffs in Suit No. C/10/1972 and defendants in Suit No. C/10/1972, appellants herein, being thereafter designated and treated throughout the proceedings in the High Court as the plaintiffs, and the defendants in Suit No. C/10/1972 and plaintiffs in Suit No. C/19/1972, that is, the respondents herein, as the defendants therein. These designations of the parties hereto will for convenience be retained and continued throughout this judgment.

On the pleadings and the evidence in support thereof, the case of the plaintiffs was that the land, the subject matter of both suits and in dispute is a large expanse of land comprising 9 pieces or parcels namely, Likpanko, Kepotodo, Ekpolo-Ito, Kekpakola, Ito-Emego, Kokobili, Levaba, Alohibo and Edeligbo – all of which are situate and lying between the lands of the two defendants – and form part of a larger expanse of land, which is their property, the said larger expanse of land being roughly divided into two distinct and separate portions by administrative or executive boundary, the demarcation thereof having first been done by District Commissioner, Major Cockburn between 1899 and 1903, that the whole of the larger expanse of land aforesaid is delineated and verged green on the plan No. TJSE. 3OLD of 2nd August, 1972, Exhibit 1 herein, prepared by Licensed Surveyor J. T. John, the area at present in dispute being thereon verged pink; that their ancestors or predecessors-in-title from whom they inherited the land in dispute originated as a result of tribal war about 100 years ago from Agbo clan in Obubra Division and migrated therefrom to and at first settled on that part of the land in dispute known as Leveba, Kekpakola or Kepotodo, Kokobili, Ekpolo-Ito and Ito-Emego, lying to the North-West of Leva stream, which was granted to them absolutely by the people of Adun, the original owners thereof; that next to their original settlement aforesaid there lay the territory of Isobo people, an unpopular people, whom the Adun people with their own assistance and the assistance of the defendants’ ancestors subsequently drove away from the area; and that with the departure of the Isobo people their ancestors abandoned for the purpose of settlement the Levaba area of the land and moved closer to the bank of the Cross River and there made their permanent settlement while at the same time continuing to exercise maximum acts of ownership in and over the whole of the larger expanse of land aforesaid.

It was the case of the plaintiffs that soon thereafter, the defendants’ ancestors, who had themselves migrated into Adun territory and were also granted land North of Levaba stream by the Adun people began to lay claim to the land near to or in the vicinity of the Levaba stream, portions whereof are included in the land in dispute; that encroachment by the defendants led to a war between their ancestors and the ancestors of the defendants and resulted in the intervention of District Commissioner Major Cockburn who, in 1899, stopped the war between them and demarcated and pillared a permanent boundary separating their land from the lands of the defendants; that thereafter both they and the defendants accepted and respected what became known as the Cockburn boundary; and there was peace; that in 1903, the defendants violated the Cockburn boundary and began to harass them, the plaintiffs, over the area of land now in dispute; that that resulted in the agreement, Exhibit 2, drawn up by District Commissioner C. Partridge between them and the defendants, which agreement, once more re-emphasised the Cockburn boundary, which both parties then agreed to accept and for which purpose both parties, that is, the plaintiffs and the defendants herein had to chop “Mbiam” by way of sealing the said agreement to abide by the Cockburn boundary of 1899; that in 1913, 1917 and 1927 after an uneasy peace, the defendants again violated the Cockburn boundary, the result whereof was war, lasted until the intervention of some other Administrative Officers. So that since 1899 there had been from time to time repeated warfare between them and the defendants over the area of land in dispute interspersed with periods of uneasy peace and manifest attempts by Administrative Officers to impose upon them an administrative or executive boundary; that the matter came to a head in 1929 when they, as represented by Eva Agbor, instituted Suit No. 4/1929, Exhibits 3, 4 and 7 in the Ogoja Provincial Court against the defendants, as represented by Eva Ndeben and Obot Eta claiming:-

“1. a declaration of title and recovery of possession of the whole of the larger expanse of land then in dispute including the area now under consideration; and

“2. declaration of boundary between the lands of the plaintiffs and those of the defendants as may be adjudged to them in this action”;