Ofu Osadim V. Chief E. E. Tawo (2009)

LawGlobal-Hub Lead Judgment Report

THERESA NGOLIKA ORJI-ABADUA, J.C.A.

The Plaintiff instituted an action against the Defendant at the High Court of Cross-River State, sitting at Ikom in Suit No. HM/99/2000 claiming as per the endorsement on his Statement of Claim thus:-

“1. The sum of N100 million being general damages for Cocoa illegally harvested while in trespass on the land in question.

2. A declaration that the continuous stay of the Defendant on the Plaintiff’s Community Cocoa farm, without the Plaintiff’s consent amounts to trespass.
3. An order evicting the Defendant from all parts of the Plaintiff’s Cocoa farm.
4. An order of perpetual injunction restraining the Defendant from further entry into any part of the Plaintiff’s Cocoa farm.

Pleadings in the matter were filed, exchanged and completed and the matter was then set down for hearing. The parties presented two witnesses respectively including themselves. At the conclusion of the trial, the learned trial Judge found in favour of the Plaintiff and entered judgment for him in the following terms:-

“1. The Defendant is to vacate the portion of Cocoa farm belonging to Ndoma Ndoma forthwith.

2. The Defendant is to negotiate with the Okosoro community the rent he is to pay to them, on account of his late mother’s Cocoa farm because he is not a native of Okosoro but of Akparabong village.
3. The Defendant is to enter the portion of the Cocoa farm belonging to his late mother only after drawing up a proper agreement with the community with effect from 1st January 2006.
4. All the previous rents due from the Cocoa farm belonging to Ebin Eyam and also that belonging to Ndoma Ndoma are hereby waived. The next of kin to Ebin Eya and Ndoma Ndoma are to enter separate agreements with Okosoro community-who are hereby mandated to demarcate the two farms with life trees.
5. This case is hereby accordingly determined and disposed with N10,000.00 against the Defendant on record in favour of Okosoro community (represented by the Plaintiff) in this case.
6. Judgment for the Plaintiff”.

Being dissatisfied with the judgment, the Defendant appealed against the same on the grounds that;

“(1) The judgment is against the weight of evidence.

(2) The trial Court erred in law in awarding reliefs not sought by the parties which said error led to a gross miscarriage of justice.

(3) The trial Court erred in law in awarding a relief to a person who is not a party or privy to any of the parties in the suit.

(4) The trial Court erred in law in alluding to and reaching conclusions on the law and customs of inheritance of Okosoro and Akparabong where evidence on same was neither pleaded nor called during trial”.

The Appellant in his Brief of Argument, prepared by his Counsel, O. N. Agbor Esq, propounded three issues for determination by this Court.

They are:

“(1) Whether the trial Court was right in entering judgment for the Plaintiff in the face of material contradictions in the evidence of the prosecution witness?

(2) Whether the lower Court had the jurisdiction to partition the farm in dispute and award same to a party who did not file any claim?