Ekaete Bassey Okposin & Ors. V. Florence Assam (Mrs.) & Ors (2005)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

In the High Court of Akwa Ibom State holden at Eket, the plaintiffs claimed against the defendants as follows:-

(1) A declaration that the land known as Odoro Ndiso and shown on plaintiffs’ plan is the land of the plaintiffs.

(2) N4,000.00 damages for trespass.

(3) An injunction to restrain the defendants by themselves, their servants or agents from continuing or repeating any act of trespass on the land in dispute.

(See paragraph 22 of the amended statement of claim which supercedes the writ).

After the filing and exchange of pleadings, the case proceeded to trial. At the trial the plaintiffs called six witnesses in support of their respective cases. Counsel on both sides addressed the court. In a reserved judgment, the learned trial Judge entered judgment for the plaintiffs in respect of their claims for a declaration of title and perpetual injunction in respect of the piece of land known and called Odoro Ndiso. The claim for damages for trespass over the land was dismissed. The judgment concludes on page 232(A) thus:-

“From the evidence presented in the case, I find it difficult to hold that the plaintiffs were in exclusive possession of the disputed land prior to the institution of this case. The claim for damages for trespass cannot therefore succeed. Placing the totality of evidence produced by the plaintiffs in this suit side by side with the total evidence produced by the defence in this case my view is that the plaintiffs have had an edge over the defendants. I will therefore exercise my discretion in favour of the plaintiffs and declare that the title to that piece or parcel of land known as and called “Odoro Ndiso” situate at Ikot Uso Ekong within Ikot Local Government Area is vested in the plaintiffs. The said piece or parcel of land is more particularly delineated in Plan No.ESA/548/LD drawn by E. A. Akpan Licenced Surveyor, filed in this action and therein edged Yellow. There will also be an injunction to restrain the defendants and their agents etc. from further interference with the said “Odoro Ndiso” land.

Dissatisfied with the above decision, the defendants appealed to the Court of Appeal holden at Calabar.

The most important issue which the Court of Appeal had to resolve was whether or not the plea of res judicata raised by the defendants in their pleadings and evidence was sustained. In a unanimous judgment the appeal was allowed. The judgment of the trial High Court was set aside and in its place an order dismissing plaintiff’s claims was substituted. The lead judgment on page 427 of the record reads:-

“On a proper evaluation of the said evidence it is crystal clear that from the pleadings and the evidence before the trial court that 1st appellant has raised a successful plea of res judicata and I so hold. In the final result there is merit in the appeal and it ought to be allowed. I therefore allow the appeal and set aside the judgment of the High Court of Akwa Ibom State and in its place I hereby enter judgment dismissing plaintiffs’ claims.”

Aggrieved by the decision of the Court of Appeal, the plaintiffs have now appealed to this Court. Ten (10) Grounds of Appeal were filed from which three (3) issues for determination have been identified as follows:-

“1. Whether the Lower Court was right when it held that the learned trial judge was in error not to have upheld the plea of estoppel per rem judicatam.

2. Whether the Court of Appeal was right in setting aside the findings of the learned trial judge that the appellants had proved their ownership of the land and were therefore entitled to the declaration sought.

3.Whether the Court of Appeal had fairly considered the appellants’ case as presented before it.”