Ntoe Usan Iso (Deceased) & Ors V Chief Ansa E.a Eno (2003)

LAWGLOBAL HUB Lead Judgment Report

M.E. OGUNDARE, JSC.

This appeal was argued before us on 29th of April, 2003 and after hearing learned counsel for the Defendants/Appellants, I dismissed the appeal with N10,000.00 costs to the Plaintiff/Respondent and indicated then that I would give my reasons for the judgment on the 11th July 2003. I now give reasons for my judgment.

This case has a chequered history in that the first action in respect thereof was instituted in 1942. It found its way to the Federal Supreme Court in 1960 when that Court decided the appeal to it on 9th November 1961. A fresh action leading to this appeal commended in 1976. One Ikang Eta was the original settler and founder of the settlement known as Akinm Qua Town and owner of all the land constituting the settlement. The Plaintiffs in this action, that is, Oyo Family are of Big Qua Town and are maternally related to Ikang Eta through the latter’s brother and sister. The Defendants on the other hand are directly related to Ikang Eta and form the Akim Qua Clan. By the custom of the area, the Plaintiffs are entitled to inherit in the Estate of Ikang Eta and because the Akim Qua Clan of the Defendants denied them this right the Plaintiffs sued the latter in suit No. C/3/1942 claiming recovery of possession of the Ikang Eta land called Omonokor; Omonokor is part of Ikang Eta’s land and it is dry land. The other part of Ikang Eta’s land, that is, Akim Qua Town, is swamp land. That action was pending when in 1945 the Plaintiffs again sued the Defendants in suit No. C/11/1945 claiming a share in the rents paid by the Government of Nigeria for the lease of the swampland. The two suits were consolidated by the Supreme Court (as the High Court was then known) for trial and because of issue of customary law involved in the cases, that Court referred the consolidated cases to customary arbitrators for determination according to Qua Native law and custom. The arbitration lasted quite some years at the end of which the arbitrators determined as follows:

“In Suit No. C/3/1924 the plaintiffs as descendants of the maternal brother and sister of Ikang Eta are granted the joint declaration of title with the blood descendants of Ikang Eta.’

‘In respect of case No. C/11/45, the plaintiffs as descendants of maternal brother and sister of Ikang Eta are allowed only one third of the total amount of monies accruing from the land of Ikang Eta.”

Being dissatisfied with the decision of the arbitrators the Defendants applied unsuccessfully to the High Court to have the decision set aside. They further appealed to the Federal Supreme Court in FSC/322/1960 but the appeal was on the 9th November 1961 dismissed.

Notwithstanding the decision against them the Defendants would not pay the Plaintiffs their share of proceeds from the Ikang Eta land. They laid out part of the land into plots and started selling. The Plaintiffs therefore, in 1976 sued the Defendants once again claiming as per paragraph 12 of their amended Statement of Claim:

“(i) An account of all money which have come to the hands of the Defendants in respect of the landed properties of late Ikang Eta founder of Akim Qua Town, Calabar from 27th day of March, 1952 and payment over to the Plaintiff of one third of amount found due after taking such account in accordance with the decision of the Arbitration in suit No. C/11/45 (consolidated with suit No. C/3/42) as confirmed by the Supreme Court in Appeal No. FSC 322/1960 on the 9th day of November, 1961 on the issue.

(ii) Injunction to restrain the defendants from alienating any part of Ikang Eta lands or collecting rents or compensation or dealing in any fiscal manner with the land till they have rendered account and paid out the one third due to plaintiffs.

(iii) The said account to be presented to Court and

(iv) Injunction to restrain the defendants from any further dealings with Ikang Eta lands (Akim) or any part thereof without the consent and authority of the Plaintiffs.”

The action proceeded to trial in the course of which issues for determination were settled by the parties. These are:

“(i) As all parties are agreed that the arbitration of C/3/1942 and C/11/1945 and Supreme Court Suit No. FSC/322/1960 cover this transaction do these suits cover all of Akim lands or just part of Akim lands.

(ii) Is the plaintiff entitled to enforce or execute the judgment now for the payment of one third share in respect of all dealings with Akim lands to the extent determined in one above and if so from when.