Chief Thomas I. Agom & Ors V. MR. Nkong Udam & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment)

This is in respect of an appeal against the judgment of the High Court of Cross-River State sitting at Ogoja and presided over by Ita J. The appellants as claimants had taken out a writ of summons on behalf of themselves and the Ikajor-Adagom Community, Adagom, Ogoja, Cross-River State against the 1st respondent as the only defendant, claiming the following reliefs;

1. A declaration that the claimants are the owners from time immemorial of the three building plots lying and situate at Ikajor-Adagom, Ogoja more particularly lying behind Nomardic Primary School, Ikajor-Adagom, Ogoja.
2. A declaration that the act of the defendant entering into the claimants three plots of land to build and plant palms without leave, license, consent or authority of the claimants amounts to trespass by the defendant.
3. An order evicting defendant from the claimants’ land lying and situate at Ikajor-Adagom, Ogoja more particularly lying behind Nomadic Primary School, Ikajor-Adagom, Ogoja with a reversion to the claimants community.
4. N5,000,000.00 only being special, general and

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aggravated damages for trespass.

5. Perpetual injunction restraining the defendant by himself, agents, privies or assigns from further entering claimants community land lying and situate at Ikajor-Adagom, Ogoja more particularly lying behind Nomadic Primary School, Ikajor-Adagom, Ogoja in violation of the claimants exclusive right to title and ownership thereof.

The 2nd and 3rd respondents at their instance were joined as 2nd and 3rd defendants to the suit and the three defendants jointly filed a defence and counter-claimed as follows:

1. A declaration that Madam Ntaji Ukawu and Madam Susan Ukawu are entitled to the deemed statutory right of occupancy of the land in dispute situate off Adagom Road, Ikajor-Adagom, Ogoja and bounded at the frontage by Nomadic Primary School Adagom, Ogoja, at the rear by the rice farm of Mr. Simon Iwong, at the right side by the palm plantation of Solomon Inyamagum and at the left side by the yam/cassava farm of Solomon Inyamagum.
2. An order of perpetual injunction restraining the claimants, their agents, servants, workers, privies etc from further trespassing and laying claims to the land in dispute described above and doing

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any act adverse to the counter claimants interest.

3. The sum of N3,000,000.00 damages for trespass into the counter claimants’ land by bringing strangers to sell the land. 4. The sum of N50,000.00 only for cost of this action.

At the trial the claimants called 3 witnesses while the defendants called 5. In a considered judgment delivered on the 29th October, 2012, the learned trial Judge dismissed the claim of the claimants and found for the defendants/counter-claimants.

Dissatisfied, the appellants filed a Notice of Appeal on the 13th December, 2012 containing 2 grounds. The said Notice of Appeal was subsequently amended via the Amended Notice of Appeal filed on 7th October, 2013 this time containing 13 grounds.

At the hearing of the appeal Mr. Dibang the learned counsel for the appellants adopted his appellants brief filed on 7th October, 2013 and deemed properly filed and served on the 15th January, 2015. Therein he distilled and argued 4 issues for determination from the grounds of appeal as follows:

1. Whether the learned trial Judge was right in dismissing the claims of the claimants and declaring title in favour of the 2nd and 3rd

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defendants/counter-claimants.

2. Whether the learned trial Judge did not misplace the burden of proof and thereby occasioned a miscarriage of justice.
3. Whether the findings of facts made by the learned trial Judge are not perverse and if the answer is in the affirmative, whether the perversity did not occasion a miscarriage of justice.
4. Whether the trial Judge properly assessed and evaluated the evidence adduced from the DW1 and DW2 in cross-examination.

For the respondents, Mr. Momba distilled and argued 3 issues from the grounds of appeal as follows:

1. Whether from the totality of the evidence on record, the learned trial Judge was right in declaring title to the 2nd and 3rd respondents in accordance with the Bakor/Adagom native law and custom of land ownership.
2. Whether the learned trial Judge was right in placing the onus of proof on the claimants/appellants who alleged that the custom of Ikajor Adagom permits all ancestral farm lands of families to be converted to residential area and leased out by the chiefs and elders of the community.
3. Whether the learned trial Judge properly assessed and evaluated the evidence of the parties in the case in

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