Okon Udofe & Ors Vs Chief Akpan Aqusisua & Ors (1973)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS JSC.

In suit No. 0/44/1956 commenced in the Calabar High Court, the plaintiffs, now appellants, claimed against the defendants, now respondents, declaration of title to the piece of land known as “MBIARABA” which consists of the old village site of the Mbiaraba people called “Ndon Mbiaraba” and Mbiaraba farmlands and swamps.

The land is bounded on one side by Ekim land, on the second side by the Ikot Ukap Village, on the third side by Ikot Andem Village and on the fourth side by Mbak Ekoi Land. The plaintiffs also claimed damages for trespass and an injunction restraining the defendants, their servants and/or agents from further acts of trespass on the said land.

According to the averments in their Statement of Claim and the traditional and other evidence adduced in support, the land has been the property of the plaintiffs from time immemorial and until February, 1956, it has been cultivated by them from year to year without any disturbance from anyone.

In February, 1956, several persons from the defendants’ village broke into the land in dispute, cleared it, and planted crops in it. Before planting these crops, the defendants uprooted and destroyed the plaintiffs’ crops which had already been planted by them on the land. For their part, the defendants, both in their own Statement of Defence and in their evidence in support, claimed the land in dispute as their own and further stated that until the present action was instituted against them, they had not had any dispute over the land with anybody from time immemorial.

A comparison of the land claimed by the plaintiffs in their plan (Exhibit “G”) with that claimed by the defendants in their own plan (Exhibit “H”) as well as the evidence adduced by both parties to buttress their respective claims, showed that the portion of land lying to the east of the land in Exhibit “G” is not disputed by the defendants as being the property of the plaintiffs. What is in dispute is the remaining land in Exhibit “G”, and it approximately corresponds with the area shown in the defendants’ plan in Exhibit “H”. According to the two plans, the portion is triangular in shape. The northern side of this triangle is made up of a road from Udua Ndobo old market to Ntiot (or Ntiat). The base starts from Udua Ndobo old market and runs south to the Eto Afia tree, while the third side of the triangle starts from the Eto Afia tree and runs north-eastwards to Ntiot.  It is common ground that the land to the north of the disputed triangle belongs to the Mbak Ekoi people while the land to the east of the boundary from Eto Afia tree to Ntiot is admitted by both parties to belong to the Ikot Ukap people (that is, the plaintiffs’ people). The only real point of difference between the two plans (Exhibits “G” and “H”) is with regard to the base of the triangle which runs from Udua Ndobo old market to the Eto Afia tree. While the plaintiffs described the lands adjoining the base of the triangle as Ikot Andek and Ikot Ukap land (thus claiming them as their own), the defendants described them as Imuk Itu and Isung Emaha Nkang. Since the defendants’ case is that the plaintiffs own no land within the disputed triangle, the actual location of the base of the triangle is crucial to the case of the plaintiffs.

In the course of the hearing, the defendants tendered two proceedings. The first is in Suit No. 33/56 (Exhibit “C”), wherein the defendants’ people in April, 1956, sued the plaintiffs’ in the Itam Native Court for declaration of title to some pieces of land named Obot Unmo Akai, Obot Inuk Etu and Ison Ema Atan respectively. They also claimed damages for trespass and also an injunction. Although the defendants in that case (i.e. the plaintiffs’ people), did not attend the hearing, judgment was nevertheless given in favour of the plaintiffs (now defendants), who did not adduce any evidence in support of their claim. The defendants in that case appealed against the decision to the Itam-Itu Itam (Etu District) Appeal Court.

The proceedings in this Native Court of Appeal (Exhibit “D”) showed that, after a hearing in which the respondents to the appeal (that is, the present defendants’ people) were made to testify first and the appellants and their witnesses thereafter, the appeal court confirmed the judgment of the Itam Native Court which had been given earlier without any evidence being adduced, in favour of the present defendants’ people. The defendants’ case is also that the plaintiffs in the present case are estopped by those two decisions from claiming the land now in dispute. At the second hearing of the case which started on 10th September, 1962 (the first hearing was before Chika Idigbe, J.,) (as he then was), but he was unable to conclude the proceedings, hence the hearing de novo), ten witnesses testified for the plaintiffs. They included the 2nd plaintiff (Edet Udofe), the 5th Plaintiff/Witness (Okon Harrison Unang Ebong), who only tendered the warrants of the Itam Clan Native Court and of the Native Court of Appeal, and the 7th Plaintiff/Witness, (Theophilus John), the licenced surveyor who surveyed the land for the plaintiffs and tendered the survey plan (Exhibit “G”).

In a reserved judgment in which he dismissed the plaintiffs’ claim, the learned trial Judge commented on the testimony of the 2nd plaintiff as follows:-

“Although paragraph 6 of the Statement of Claim refers to the piece of land called ‘Obot Nsai and Obot Akani Anwan’s as being owned by the plaintiffs from time immemorial, no evidence was given by the 2nd plaintiff as to how they came to own these two pieces of land.”

Incidentally, paragraph 6 of the Statement of Claim to which the learned trial Judge referred reads –

“6. Obot Nsai and Obot Akani Anwan are farmlands, and have been the property of the plaintiffs from time immemorial, and have until February, 1956, been cultivated by them from year to year without any disturbance from any one.”

The comments of the learned trial Judge on the remaining seven witnesses called by the plaintiffs are as follows:-

1st P1/W – Chief Jackson Akpan “I am not satisfied with his evidence as to the boundaries of the land in dispute. He seems to be telling this court where the land extends to not what forms the boundaries.” 2nd P1/W – Nse Afagha : “The evidence of this witness about boundaries is unsatisfactory ……. I am not very much impressed with the evidence of this witness and I find him unreliable.” 3rd P1/W – Akpan Eme: “After watching the demeanour of this witness I do not believe his evidence that he knew anything about this land in dispute.

He did not impress me as speaking the truth.” 4th P1/W – Etim Udo Ebebe : This witness said that a portion of the land in dispute was leased to him by one Chief Udofe about eight years before the trial in the High Court but when it was pointed out to him that Chief Udofe was blind at the time, he changed his testimony and said it was Chief Udofe’s son who showed him where he should farm. Of this evidence, the trial Judge said – “This evidence about this lease is most unreliable.”  6th P1/

Other Citation: (1973) LCN/1770(SC)