Francis Udo Ekpeyong & Ors Vs John H. Essiet & Ors (1975) LLJR-SC

Francis Udo Ekpeyong & Ors Vs John H. Essiet & Ors (1975)

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This appeal is against the judgment of Balonwu, J., (as he then was), delivered at Uyo on the 30th June 1965, in Suit C/12/60. The judgment was an award of £50 as general damages for trespass in favour of the plaintiffs, now respondents before us, against the appellants who were defendants in the High Court. The hearing of the case commenced at Calabar and later concluded at Uyo. Although the claim was for damages for trespass the issue of title was raised in the pleadings. We wish to refer to the following averments as setting out the issues joined by the parties. The plaintiffs in their Statement of Claim averred as follows:-

“1. The plaintiffs are the Chiefs and Elders of Village of AFIA NSIT (2) Uyo Division, and sue for themselves, with the authority and consent and on behalf of the people of AFIA NSIT (2), and with the approval of the Court. The defendants are the chiefs and elders of the village of Akpa Utong, Uyo Division, and are sued herein jointly and severally.

2. The land, the subject matter of this action (hereinafter called the land in dispute) is known and called NDUN OBIO NKO, and is situated at Uyo Division, and bounded as follows:-

(a) On the EAST by the land of Iko Oku Akpan people.

(b) On the SOUTH by the land of the plaintiffs, and Ikot Itok people.

(c) On the NORTH by the land of AFIA NSIT people i.e. plaintiffs.

(d) On the WEST by the village of the plaintiffs. These boundaries are clearly shown and described with ancient boundary marks and trees, and the said boundaries and delineated on the plan filed in this action, verged pink.

3. In the year 1918, the Ikot Etok people took action against the plaintiffs challenging their rights on the said land, NDUN OBIO NKO, and the District Officer, Mr. R. B. Brooks, after examining the merits of the case, dismissed same awarded title to the said land to the plaintiffs, vide suit No. 8/1918.

4. The land in dispute had been from time immemorial the absolute property of the plaintiffs and their people who have at all times exercised maximum acts of ownership over the same by farming, leasing, collecting palm fruits, building and doing diverse manners of work therein without let or hindrance for the defendants or their people.

5. The plaintiffs from time immemorial had been in possession of the land in dispute, during which period it had all been peaceful, the defendants respecting the right, title and interests of the plaintiffs and their people on the said land in dispute, and the plaintiffs and their people exercising their rights of ownership and exclusive enjoyment without disturbance until in February, this years, when the defendant and their people interfered with the rights of plaintiff on the said land, by brushing same for farming purposes.

6. WHEREFORE (a) The Plaintiffs claim from the defendant jointly and severally the sum of £500 being general damages for trespass in that the Defendants during the month of February, 1960, without the leave or licence of the plaintiffs, wrongfully broke and entered Plaintiffs’ piece and parcel of land known and called NDUN OBIO NKO situate at Afia Nsit (2) in the Calabar Province, which had been in actual and peaceable possession of the plaintiffs, and brushed same for farming. (b) Perpetual injunction restraining the defendants, their agents and or servant from further acts of trespass to the said land NDUN OBIO NKO.”

The defendants, in their Statement of Defence in reply, averred:-

“1. Save as is herein expressly admitted the defendants deny each and every material allegation of facts contained in paragraphs 2, 3, 4 and 5 of the Statement of Claim as if the same were herein set out and traversed seriatim, and will put the plaintiffs to the strictest proof of each and every such allegation.

2. The defendants are not in position to admit or deny paragraph 1 of the Statement of Claim but will require strict proof of the allegations therein contained.

3. The defendants aver that they are defending this action as representatives of their people of Akpa Utong as the land in dispute is the communal property of the people of Akpa Utong. At the hearing the defendants may apply for the approval for the court of them to so defend this action.

4. In answer to paragraph 2 of the Statement of Claim the defendants aver that the land in dispute between the plaintiffs and them is not known as ‘Ndun Obio Nko”, and indeed, that they do not know of any land bearing the name “Ndun Obio Nko” which is the property of the plaintiffs. The land in dispute between the plaintiffs and the defendants is known as “Ekpene Ibiok” and it is a small portion of a larger expense of land belonging to the defendants.

5. The land in dispute known as “Ekpene Ibiok’ (a Plan whereof will be produced at the hearing) has been from time immemorial the property of the defendants who as owners in possession, have exercised and are still exercising maximum acts of ownership over the same by farming thereon, collecting palm fruits therefrom, dwelling thereon and doing divers manners of work therein according to custom without 1st or hindrance from the plaintiffs or from anyone else.

6. In answer to paragraph 3 of the Statement of Claim the defendants aver that they do not know anything about the Suit No. 8/1918 therein pleaded as they were not parties thereto, or is it alleged by the plaintiffs that they knew anything about the same. The defendants say that the suit therein referred to is not relevant to the present suit and that the plaintiffs have merely named the land in dispute as “Ndum Obio Nko” in order to apply the said suit to the present land in dispute, and so confuse the issue between the parties.

7. The defendants will at the trial plead:- (i) That the Plaintiffs are not entitled as claimed as the Defendants cannot be trespassers on their land. (ii) Ownership, long continuous possession, laches and acquiescence. (iii) Other legal and equitable defences pertinent to the claim.”

On the pleadings the plaintiffs relied on the proceedings of the 1918 case as establishing their title to the land. The 1918 proceedings were tendered as Exhibit D dated 12/4/1918. They also relied on acts of ownership by possession from time immemorial. We wish to make two observations on the 1918 case. At the hearing of this suit, an abortive attempt was made to relate a plan dated 13th April 1957 (which is a copy of a plan dated 2nd May 1918) as having been tendered in the 1918 case. The ruling of the learned trial Judge reads:- “Court: I see that the date on the plan is 13th April, 1957. And the plan is a copy of an original plan dated 2nd May, 1918 judgment in the proceedings (Exhibit ‘D’) was given by Mr. Brooke on 12th April, 1918. For these reasons, I do not think that this plan was used in the proceedings Exhibit ‘D’ and I accordingly uphold the objection. Plan dated 13th April 1957, marked “rejected.” It is strange, however, that although the Exhibit E in this case was formerly rejected when first tendered through 1st P.W., later on when 3rd P.W. (a surveyor) gave evidence, the plan was admitted in evidence not on the basis that it has any relation to the 1918 case but that it was a copy of a plan made by another surveyor in 1918. This is the portion of the proceedings showing how this plan came to be admitted:

“EVIDENCE OF JOSEPHLUS THEOPHILUS JOHN (P.W.3) Recalled When last I gave evidence in this court, I said that I made a copy of the Plan made in 1918 by Surveyor George for the plaintiffs and that I sent same to Enugu for the counter-signature of the Director of Surveys. I also said that that Plan had not come back from Enugu, countersigned by the Director of Surveys. This the Plan. Plan tendered. No objection. Received. Exhibit “E”. Exhibit “E” is a Plan of the land in dispute between Usanga Akpan Udo of Akpabio of Afia Nsit.” 

There is no doubt that the learned trial Judge did not realize that he had previously rejected the plan later tendered as Exhibit E, as being a plan of the plaintiffs. When Exhibit E, was admitted through 3rd P.W. it was only treated as a certified copy of the plan by one Surveyor George in 1918 made subsequently to the judgment of Brookes (District Officer) on 12th April 1918. Exhibit E was made by Surveyor George on 2nd May 1918. There is no doubt that the judgment the District Officer set out the demarcated boundaries of the land adjudged to be that of the Plaintiffs, but the subsequent plan was never presented before him and in the presence of the parties to that case to be adjudged as the plan of the Plaintiffs.

The learned trial Judge, having made the mistake of treating Exhibit E as the land adjudicated upon in 1918, proceeded to elaborate on the effect of that judgment. The analysis made and conclusions drawn by the learned trial Judge cannot be supported having regard to the fact (1) that the parties in 1918 case are not the same as in this case, and (2) that the land adjudicated upon had not been identified. This being so, his inferences drawn from the fact as to the title of the plaintiffs to the land in the 1918 case were therefore erroneous.

Although the plaintiffs gave evidence of possession and farming other than that based on the 1918 case, the learned trial Judge did not evaluate either such evidence or the contrary evidence of the defendants. His mind would appear to have beclouded by his views on the 1918 case and Exhibit E. Learned counsel for both parties, that is Mr. Okorie for the appellants and Mr. Esin for the respondents, agreed that the learned trial Judge was wrong in law when he said:-

“In doing this, I bear in mind that it had also been held by the Federal Supreme Court that the weakness of a defendant’s case may be a source of strength of the case of Plaintiff.” It is difficult to assess how much of this wrong view of the law has affected the learned trial Judge in his judgment and, in the absence of this, it will be unsafe to allow this judgment to stand.

We are, therefore, of the opinion that the learned trial Judge was wrong in his treatment of the 1918 case and Exhibit E. We also think that he was wrong about his statement of the applicable principle of law, that is that the weakness in the defendant’s case may be a source of strength of the plaintiff’s case. For these reasons this judgment cannot be allowed to stand. Mr. Esin, learned counsel for the respondents, had asked us to non-suit the respondents’ claim, but this was strongly opposed by the learned counsel for the appellant. We are convinced that a non-suit will not meet the Justice of this case. The appeal, therefore, succeeds and it is allowed. The judgment of Balonwu, J., in Suit C/12/60 delivered on 30th June 1965 with its award of costs is hereby set aside.

In substitution on thereof, judgment is hereby entered in favour of the appellants and the claim of the respondents in the lower court is hereby dismissed. We award costs of 256 Naira in favour of the appellants in this court and 80 Naira in the High Court. This shall be the judgment of the court.

Other Citation: (1975) LCN/2062(SC)

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