S.O. Nyambi V. R. O. Osadim

E. OGUNDARE, J.S.C. 

This case has a chequered history. The proceedings commenced in 1961 in the Ikom/Olulumo/Akparabong District Court where Mpama Ekpong of Olumi, for and on behalf of Iyami Olumi sued S.O. Nyambi and 9 others, all of Omon-Olumi for and on behalf of the people of Omon-Olumi, claiming:-

“The plaintiffs claim is for entering and farming on plaintiff’ land thereby plaintiffs wishing you to quit.”

Both parties led evidence but at the close of the case for the defendants the court ordered the plaintiff to file a survey plan of the land in dispute within 60 days. This was on 3rd May 1961. On 26th day of July 1961 time was extended. It would appear that the parties reached an accord and nothing was done anymore to prosecute the action to judgment. The plaintiff did not file a survey plan as ordered and the defendants did not move the court to strike out the action. The action, however, remained on the cause list.

Meanwhile the original plaintiff had died and three of the defendants too, died leaving 7 of them alive. Things again fell apart, necessitating, in 1981, R.O. Osadim and J.E. Okimedim, both of Iyami-Okumi to apply, on behalf of their people, for the case to be re-opened, heard and determined. On 18/8/81, the District court ordered –

(1) That the people of Iyami be represented in this case by Messrs R.O. B Osadim and J.E. Okimedim as plaintiffs in place of late Mpama Ekpong in accordance with section 19 of the Customary Courts Edict of 1969.

(2) That the letters including the photocopy of the proceedings in case No. 122/61 be received and be filed with the court.

(3) That the plan of the land in dispute be filed with the court by plaintiffs. That the case be resumed for hearing forthwith.”

Following the order of the court, the defendants applied that they be served with the particulars of claim. On 14/9/81, the Court made the following order:-

(1) In view of what the defendants in court have said, the court feels that the certified true copies of particulars of the claim be made available to the defendants. Since the writ of summons were already served on defendants in 1961 when the case started, it could not then be necessary to reserve the writs to defendants again.

(2) The petition be replied by the Court Registrar whenever he is written to.”

Unsuccessful attempts were made by the defendants to thwart the hearing of the action.

Hearing finally commenced de novo on 1/6/82. 1st plaintiff testified and tendered, in evidence, the survey plan of the land in dispute, that is, Plan No. IN 124/61 of 8/9/61. One Edward Edim Oba also testified in support of plaintiffs’ claim. The 4th defendant and two witnesses testified for the defence. At the close of the case for the defence the court adjourned and fixed 15/6/82 for an inspection of the land in dispute and 22/6/82 for judgment. Although both parties paid the inspection fees the defendants refused to take part in the inspection. The court inspected the land on 15/6/82 in the presence of the plaintiffs only and adjourned for judgment to be given on 22/6/82. In the interval, however, the defendants pad applied to the High Court Ikom for certiorari. The District Court had to adjourn delivery of judgment sine die. The defendant’s application for certiorari was struck out by the High Court on 1/3/82 and the District Court on being notified of the outcome of defendants application fixed judgment for 15/9/82. The parties were served with hearing notices and on 15/9/82, the court delivered its judgment.

It found in favour of the plaintiffs and ordered the defendants to quit the land in dispute on 30th December 1982. A copy of the judgment was served on the defendants who were absent in court on the day judgment was delivered.

Being dissatisfied with the judgment of the trial District Court, the defendants appealed to the Chief Magistrate’s Court, Ikom. The appeal was on 8/7/83, dismissed and the judgment of the trial court was affirmed. The defendants filed a further appeal to the High Court of Cross River State, sitting at Ikom. The defendants again lost but were granted leave by the High Court to appeal to the Court of Appeal. Their further appeal to the Court of Appeal was again dismissed. They have now finally appealed to this court upon 4 grounds of appeal which read: