Ntoe Andrew O. NSA & Ors V. Rev. Marcus N. Enene & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the judgment of the High Court of Cross-River State, Calabar Judicial Division delivered on the 28th day of March , 2013 by Hon. Justice Akon B. Ikpeme.

The appellants as plaintiffs had approached the trial Court via the instrumentality of a writ of summons wherein they claimed as follows:

1. A declaration that the plaintiffs are entitled to the Certificate of Occupancy over the land in dispute in plan No. JEJ/CR/11080.
2. An order of perpetual injunction restraining the defendants by themselves, their agents, assigns or servants from further interfering, entering upon or dealing with the said land in dispute in any manner whatsoever without the consent of the plaintiffs.
3. An order for account and return of all monies either paid out or collected over the land in dispute.
4. N15 million damages for trespass.

The two sides joined issues in their pleadings and at the end of the trial, the learned trial Judge in a considered judgment found no merit in the appellants’ case and accordingly dismissed it. Obviously

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dissatisfied with this development, the appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on 28th June, 2013 containing 7 grounds.

At the hearing of the appeal, the learned lead counsel for the appellants, Mr. Ironbar adopted his amended appellants’ brief filed on 25th February, 2015.

Therein the learned counsel distilled and argued 5 issues for determination tied to the various grounds of appeal as follows:

1. Whether having regard to the evidence in this matter the appellants identified the land in dispute and proved trespass thereon. (Ground 1).
2. Whether the onus of identifying the land in dispute in Exhibit 13, a plan tendered by the respondents was rightly placed on the appellants by the trial Court. (Ground 3).
3. Whether the trial Court was right to hold in the circumstances of this matter that the Judgment in Suit No. C/88/76 which became CA/E/210/96 and ended as SC/92/2002 constituted res Judicata against the appellant. (Ground 2).
4. Whether from the evidence on record including exhibits tendered the appellants proved that the grant of the land – to the defendants ancestors was

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with conditions. (Ground 4).

5. Whether the trial Court was justified in finding that the respondents could lease the land at will and in going ahead to make a binding decision upon an issue abandoned instead of striking it out. (Grounds 5 and 6)

For the respondents their learned counsel, Mr. Akpabio adopted the respondents’ brief filed on 28th March, 2O14 but deemed properly filed and served on the 22nd September, 2014 wherein the respondents adopted and argued the issues for determination distilled and argued by the appellants.

Mr. Ironbar argued the first two issues together. The reality is that the fate of this appeal actually turns on these two issues especially issue 1, as the remaining three are adjunct and would become academic depending on the fate of the first two. The two issues are as follows:

1. Whether having regard to the evidence in this matter the appellants identified the land in dispute and proved trespass thereon. And
2. Whether the onus of identifying the land in dispute in Exhibit 13, a plan tendered by the respondents trial rightly placed on the appellants by the trial Court.

He submitted that although the

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