Ranking Udo & Ors. V. Mbiam Obot & Ors. (1989)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

In the court of first instance the Plaintiffs (now Respondents in this court) sued “For themselves and as representing the people of Akpa Utong” and claimed from the Defendants (now Appellants in this court), who are people of and representing Afia Nsit (Z) the following:

“1. A Declaration that the Plaintiffs are the titular owners in possession of the piece or parcel of land situate at Akpa Utong ………..and known as and called Ekpene Ibiok…………

2. N1,000.00 general damages for trespass in that on or about the 30th day of April, 1975, the Defendants by themselves, servants and agents unlawfully broke and entered the Plaintiffs said “Ekpene Ibiok” land and destroyed Plaintiffs houses and economic crops and built huts therein without leave or licence of the Plaintiffs. The Defendants’ will continue the said acts of trespass unless restrained.
3. Perpetual Injunction restraining the Defendants, their servants and or agents from further acts of trespass in or over the said piece or parcel of land.”

Pleadings and plans were ordered, filed and exchanged. The Plaintiffs in paragraphs 4 and 5 of their Statement of Claim pleaded as their root of title, their traditional history, as well as their various acts of ownership and possession.

They also pleaded in paragraph 7 Suit No.C/12/1960 which the present Defendants as Plaintiffs prosecuted against them (as Defendants) in and over the self same piece of land. It is relevant here to note that the Plaintiffs did not specifically set up this case and its appeal judgment in S.C.231/74 as an estoppel per rem judicata. They merely pleaded that “the proceedings judgment and plans therein filed shall be founded upon.”

It is also relevant to observe that the Plaintiffs did not as one would naturally expect, tender the entire proceedings in Suit No.C/12/1960. They merely tendered the portion dealing with the evidence of P.W.3 (page 47 lines 20-30 as Ex.L.) As much was made of this case C/12/1960 and its appeal judgment SC.231/1974 Ex. E – I will return to it later in this judgment.

The Defendants filed a Statement of Defence which they later amended in paragraph 9 and by adding a new paragraph 11(d). They too also averred that they are owners of the land in dispute and relied on “original occupation and deforestation” as their root of title. Like the Plaintiffs they based their claim to ownership and occupation of the land on their traditional history. Like the Plaintiffs also the Defendants pleaded several acts of possession and continuous ownership. Again like the Plaintiffs, the Defendants pleaded Suit No.C/12/1960 and its “ultimate dismissal by the Federal Supreme Court.”

Now the issues calling for determination and resolution from the pleadings are as follows:

1. Which traditional history is more probable, more likely to be true, and therefore, more acceptable
2. In case of doubt or there being nothing to choose between the two conflicting traditional histories which side has proved acts of possession more numerous and more positive to lead to the conclusion that they are owners of the disputed land.
3. What is the legal effect of Suit No.C/12/1960 and its appeal judgment SC.231/1974 on the rights of the parties

It will be interesting to see how the two courts below dealt with the 3 issues enumerated above.

The learned trial Judge, Akpabio, J. at p.120 of the record of proceedings recorded his findings on traditional histories of the parties thus:

“I have carefully considered the traditional history of the land as adduced by both parties, and can “find nothing to choose between them. Each side claims the land to belong to his village from time immemorial. Each also claims to have been exercising maximum acts of ownership on the land, living on it and burying their dead on it. In such a situation, the court usually has no alternative than to consider the evidence of possession adduced by both parties and see which is more numerous, which is more positive and who first got to the land (as far as can be gathered from the evidence).

After this careful review of the evidence, the learned trial Judge found at pp.122/123:-

“One may therefore say that of the three acts of users and enjoyment claimed by the Plaintiffs, none was shown on their survey plan, Exhibit ‘A’. On the contrary, the plan shows at least eleven houses, said to be ‘broken houses of persons from Afia Nsit ……….. All these houses, coupled with the farms said to belong to Afia Nsit people actually go to show that the Afia Nsit people were actually in possession of the land, both by cultivating it and building houses on it’..

And at p.125 the learned trial Judge categorically stated: