Rev. Edem Okon Bassey & Anor V. Bassey Okon Akpadia (2016)

LawGlobal-Hub Lead Judgment Report

ONYEKACHI AJA OTISI, J.C.A. 

This is an appeal against the judgment of the High Court of Akwa Ibom State, Uyo Judicial Division Coram Hon. Justice Andrew E. Okon delivered on October 31, 2012 in Suit No. HU/85/91 in which judgment was entered against the Appellants.

?The case had earlier been heard at the Southern Ibesikpo District Court, Nung Udoe Ibesikpo in Suit No. SIDC/73/81 in which the Appellants were the plaintiffs and the Respondent herein and another, were the defendants. The said Suit No. SIDC/73/51 was withdrawn in the District Court by the Appellants as plaintiffs and the suit was consequently struck out by the said District Court. After striking out the suit, the District Court ordered the Appellants, who were the plaintiffs therein, to vacate the land, the subject matter of the suit and to pay special cost of N30.00. The Respondents, who were defendants in that suit, thereupon filed a fresh suit in the High Court of Uyo, claiming ownership of the said land, which they called “Ataha Aya lkon” and is situate at Ikot Obio Odongo Ibesikpo. The Appellants alleged that the said land at Ikot

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Obio Odongo Ibesikpo includes the lands of other families of Ikot Ide who were not sued in the case at High Court, Uyo. That they are the lands of “Nung Udo Nkanang, Nung Akpa Atang, Nung Udo Abasi, Nung Nsudo Akpan Edu and Nung Nsikak Etok.” The Appellants as defendants before the High Court claimed ownership of the land which they called “Ataha Aya Ikot Ide” owned by Nung Akpan Edu only situate at Ikot Ide Akpakpan Ibesikpo. Four exhibits were tendered: proceedings of the District Court as Exhibits “A”; proceedings of the Magistrate’s Court as Exhibit “B”; the Survey Plan of the Respondents herein, plaintiffs therein, as Exhibit “C”; and the Survey Plan of the Appellants, defendants therein, as Exhibit D. The learned trial Judge delivered judgment in favour of the Respondent against the Appellants.

Being dissatisfied with the said judgment the Appellants filed Notice of Appeal with an omnibus ground of Appeal on January 8, 2013, at pages 178 – 179 of the Record of Appeal. The said Notice of Appeal was struck out upon the subsequent filing of an Amended Notice of Appeal on June 19, 2013 upon five grounds of appeal.

?The Appellants’ Brief was filed on

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June 3, 2014 but deemed on May 22, 2015. The Respondents did not appear and were not represented in this appeal. They also filed no Brief of Argument. On May 11, 2015, this Court granted an application by the Appellants for the appeal to be heard on the Appellant’s Brief alone. The said Appellants’ Brief was adopted on April 26, 2016 by C.A. Ukpong, Esq. for the Appellants.

The Appellant formulated, from the five grounds of appeal, three issues for determination as follows:
ISSUE 1 (GROUND 2,5)
Whether the striking out of the case of the Plaintiff (Appellant) in Exhibit A at the District Court and at the same time ordering them (Plaintiff) now Appellants to vacate the land was competent.
ISSUE 2 (GROUND 1 & 3)
Whether the Respondent could be said to have proved or established the identity of the land in dispute with certainly to enable the Lower Court give judgment in his favour.
ISSUE 3 GROUNDS 1 & 4)
Whether the Lower Court was right to have ignored Exhibit D, the Survey Plan of the Appellants but relied solely on Exhibit C, Survey Plan of the Respondent to give judgment and grant Customary Right of Occupancy to the

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Respondent.

I adopt these issues as formulated by the Appellants for determination. Issues 2 and 3 shall be resolved together.

The Appellants submitted on Issue No 1 that the judgment of the District Court, Exhibit A, did not raise the issue of estoppel per rem judicata.
The Appellants as plaintiffs had withdrawn their suit before it was struck out by the District Court. The subsequent order for the Appellants to vacate the land after striking out the suit was incompetent and not binding. It cannot act as estoppel. Having struck out the suit, there was nothing left for the District Court to act upon. That issue estoppel arises where an issue has been adjudicated upon by a Court of competent jurisdiction and the same issue has arisen in question in a subsequent proceeding between the same parties or their privies. The Court was urged to hold that the trial Court had misapplied the law and to allow the appeal.