Akpan Sam Adua V. Akpan Akpan Udo Udo Essien & Ors. (2009)

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THERESA NGOLIKA ORJI-ABADUA J.C.A,

The Appellant was the Plaintiff at the trial Court and by his undated Statement of Claim filed on 18/7/2000 at the High Court of Akwa Ibom State sitting at Ukanafun in Suit No. HUK/30/2000, he claimed against the Respondents thus:

“The sum of N600,000.00 as special and general damages jointly and severally from the defendants in that between the 23/11/91 and 27/12/91, the defendants, without any colour of right whatsoever broke into the Plaintiff’s land known as and called “Ndon Umana Ekpo” lying or being at Ikot Otu, Oruk Anam Local Government Area and harvested various items of food crops:- cocoyams, sweet yams, cassava and palm fruits therefrom and are continuing the trespassory acts till date without ceasing and without the permission, consent or authority of the Plaintiff.

PARTICULARS OF SPECIAL DAMAGES

(i) 100 beans of cocoyam at N250 N25,000,00

100 basis of sweet yams at N250.00 N20,000.00

100 basins of cassava tubers at N300 N30,000.00

2000 cone of palm fruit at N30.00 N60,000.00

2000 tubers of yam at N30.00 N60,000.00

N145,000.00

Continuous harvesting of palm fruits since 1992

till date at the rate of N40,000,00 per year N360,000.00 N505,000.00

(ii) GENERAL DAMAGES N95,000.00

N600,000.00

Pleadings were exchanged and completed in accordance with the Rules of Civil Procedure of Akwa-Ibom State High Court.

During hearing in the proceedings, the Plaintiff testified for himself and did not call further witness. Then the 1st/Defendant and 3rd Defendants testified for themselves and the rest of the Defendants.

At the conclusion of the hearing and after evaluation of the evidence before him, the learned trial Judge dismissed the Plaintiff’s case for lack of proof and awarded N2000 costs to the Defendants. Consequent upon that, the Plaintiff filed a Notice of Appeal on 27/10/2005 which was predicated on three grounds.

Then, in compliance with the Rules of this Court, the parties in this appeal filed and exchanged their Briefs of Argument. At the hearing of the Appeal, only learned Counsel for the Appellant, Chief C. N. Idemudo was present and he adopted and relied upon the Appellant’s Brief of Argument. Learned Counsel for the Respondents was absent and their Respondents’ Brief of Argument was, in accordance with the provisions of order 17 Rule 9 (4) of the Court of Appeal Rules, 2007, deemed as having been duly argued.

The Appellant in his Brief of Argument settled by his said Counsel, Chief/Barr. C.N. Idemudo propounded six issues for determination. They are:-

“1. Can a Plaintiff in possession not succeed in the claim for trespass without a proof of ownership of land, especially, when the damage claimed is monetary, not coupled with injunction?

2. What was the effect of Exhibits A and C as regards the proof of trespass against the Respondents?
3. What was the effect of admission by the Respondents at Paragraphs 1, 2, and 3 of the Statement of Defence on the Plaintiff’s claim in trespass?
4. What exactly is special damage? Where a party claiming special damage has given evidence that leads to easy quantification of loss on the items, does the law impose much more from him in order to succeed?
5. Was the Learned Judge right when he came to a conclusion that the Plaintiff did not prove that the defendants or any of them in fact did trespass into the land on the dates alleged or that such facts of trespass were continuing in spite of the evidence of the Plaintiff and his pleadings?
6. Was contiguity an absolution from trespassing responsibility of the Respondents?”

In proffering arguments in respect of this appeal, the Appellant’s issues Nos. 1, 2, 3 and 6 were argued together while issue No.4 was argued separately. No argument was made in respect of issue No.5.

Therefore, with respect to issues Nos. 1, 2, 3 and 6, the Appellant’s Counsel submitted that by the Appellant’s Statement of Claim, particularly, at paragraphs 5, 6, 8, 10 and 11 and his evidence before the trial Court which was buttressed by Exhibits A, B and C, the Appellant had exercised several acts of possession on the said land known as ‘Ndon Umana Ekpo’, the subject matter of this appeal and equally established before the trial Court, his ownership of the said land. Exhibit A is a certified copy of the judgment obtained by the Appellant in his favour from Abak Midim District Court with regard to the said land. He stressed that the appeal filed against that judgment was also decided in favour of the Appellant. Exhibit C is equally a certified copy of the criminal proceedings in Charge No. UKM/247C/89 conducted against the 1st the-Respondent and others at the Magistrate Court for their criminal trespass on the said land.

Learned Counsel further submitted that, in law, it was unnecessary to prove ownership of a land before the Plaintiff could succeed in a claim for trespass. He stated that the Appellant proved he was in exclusive possession of the said land at the time of trespass by the Respondents, which fact, he claimed, was copiously admitted by the Respondents in their pleadings and evidence. He also stated that by showing he was still living on a part of the land, the Appellant ought to have succeeded on the authority of Atipioko Okpan & anor vs. Chief Agunu Uyo & anor (1986) 5 SC 1 at 29 line 30. He also cited the case of Ezekiel Ogundipe vs. Job Awe (1988) 1 SCNJ 84 at 85 ratio 2. He stated that going by the definition of the term, ‘exclusive possession’ by Scrutton L.J in the case of Back vs. Daniels (1925) 1 KB 525 CH at 543, the Appellant clearly showed his power of using the land, for instance, by selling out a timber tree on the land to one Sunday Jonah Udo.

Learned Counsel further contended, based on the authority of Osuji & anor vs. Isiocha (1989) 6 SCNJ Part II p. 227 ratios 1 and 2, that the fact of the Respondents’ land named; Ikot Esa Inyang being contiguous to the Appellant’s land in question notwithstanding, the moment the Respondents entered the Appellants said land known as ‘Ndon Umana Ekpo’, without the Appellant’s permission, they have committed trespass even if no physical damage or economic waste was committed.

Learned Counsel contended that contiguity or sharing common boundary is not a defence for trespass which the Plaintiff asserted and proved. He stated that the Court failed to consider the evidence placed before it that the Respondents were caught harvesting from the Appellant’s land and were impounded when the Police arrived. He argued that as at the time of the recent trespass by the Respondents, the Appellant was living on a portion of the land cultivating it with sundry crops and harvesting his palm fruits therefrom. He submitted that the Appellant was in exclusive possession of the said land and that by the case of Ayinde vs. Salami (1989) 5 SCNJ 133 at 134 ratios 1,6 and 7, living on the land, selling out Ukim timber tree and cultivating the land at the time of trespass were definite acts indicating possession of the land upon which the action for damages for trespass to land could be founded by the Plaintiff who executed those acts. He further stated that at paragraph 1 of the Respondent’s Statement of Defence, the Respondents admitted harvesting palm cones from ‘Ndon Umana Ekpo’ land and was arrested by the Police. He contended that the said land belongs to the Appellant, and, that by the Learned Judge dismissing the Appellant’s action, he was encouraging the trespassers to secure possession of the Appellant’s land. He submitted that a trespasser, does not by the act of trespass secure possession of another person’s land in law. He cited the cases of Jimoh Adebakin vs. Sabitiyu Odujebe (1972) 6 SC 208 at 210 and Ogundipe vs. Awe & Ors (1988) 1 SCNJ 84 at 85 ratio 2 in support. On issue No. 4/ Learned Counsel referred to the case of NEPA vs. Alli (1992) 10 SCNJ at p. 47 lines 31-36 and submitted that special damage means no more than such proof as would readily lend itself to quantification. He stated that the Appellant pleaded and indeed adduced uncontradicted oral evidence as to the particulars of the special damages he suffered ie, the quantity of each item taken wrongfully by the Respondents and their costs. He stated that there was no evidence before the Court showing that after the Respondents were impounded by the Police, the Appellant took any of those items home. He argued that the acts of the defendants and the circumstances under which those acts were carried out afforded and regulated the degree of certainty and particularity with which the damage proved ought to have been considered in favour of the Appellant. He submitted that the Plaintiff having proved the special damages he suffered was entitled to an award. He urged the Court to interfere with the judgment of the lower Court on the authority of NEPA vs. Ososanya (2004) 1 SCNJ p. 226 and 229 ratio 9 and allow this appeal, set aside the judgment of the lower Court and grant the monetary compensation claimed:

The Respondents, for their part, distilled two issues for determination. They are:

“(1) Whether with the pleading and evidence being at variance as regards the area of land allegedly trespassed, the Appellant had established this claim for trespass to be entitled to damages and whether the trial Court was right to have held that the Plaintiff failed to prove his case against the Defendants.

(2) Whether the Appellant was entitled to succeed in his claim for trespass in view of the acts of ownership and possession pleaded and proved by the Respondents”.

Learned Counsel firstly contended that none of the issues raised was formulated from Ground No. 2 of the Appellant’s Grounds of Appeal and that being the case, it is therefore deemed abandoned. He cited the cases of Eke vs Ogbonda (2007) 144 LRCN p. 391. at 394 ratio 3 and Araka vs. Ejeagwu& Ors 9 (2004) NSCQR p. 308 ratio 2 in support.

Dealing with the first issue, Counsel submitted that by the pleadings of the parties, the issue of identity of the land trespassed upon was contested, and that the Appellant failed to identify with certainty the exact portion of the land trespassed upon. He stated that the Respondents admitted that judgment in Suit No. 10/84 (Exhibit A) was in respect of Ndon Umanah Ekpo land belonging to the Appellant but that ever since the Judgment; they have not trespassed upon the said land. He further submitted that the Respondents pleaded and led evidence to prove that the land which they harvested palm cones from and in respect of which they were arrested by the Police at the instance of the Appellant was the Respondent’s own land known as “Ikot Esa Inyang Mbong” which lies contiguous to the Appellant’s land, the subject matter of Exhibit A. He also stated that the Respondents pleaded and proved in evidence the boundaries of the land they harvested palm cones from, whereas, no boundaries of the land allegedly trespassed upon by them were pleaded and proved in evidence by the Appellant.

Learned Counsel further stressed that by the Appellant pleading that the land in dispute comprised only one parcel and stating in his evidence under cross-examination that it comprised 12 parcels, shows that his evidence is at variance with his pleading as regards the identity of the land. He therefore submitted that where evidence adduced at the trial is at variance with the pleading, fact sought to be established is deemed not established. He referred to Igwe vs. Akanji (1990) 3 NWLR Part 141 p. 739 ratio 8 and also the Appellant’s testimony in chief at p.13 lines 16-18 of the record of appeal, where the Appellant said that only a parcel of land was in dispute between them and the case of Babalola vs. Aladejana (2001) 6 NSCQR part 2 para 1017 at 1019 ratios 3 and 4 and submitted that in a claim for trespass the onus is on the Plaintiff to prove the identity of the land trespassed upon with clarity and certainty.

Learned Counsel further contended that the Appellant pleaded no boundaries which are similar to that in Exhibit A and that there is nothing in Exhibit A to link the land in dispute except the name by which the land is known, i.e, “Ndon Umanah Ekpo”. He submitted that mere mention of the name of the land in dispute without more is not’ enough for identification of land. He further cited Babalola vs. Aladejana (supra) in support. He, also, referred to the case of Nwanguma vs. Ikyaande (1992) 8 NWLR part 288 ratio 3 and section 52 of the Evidence Act and submitted that the result of a criminal case cannot be used to establish a civil claim. Consequently, Exhibits A and C (C, being a record of criminal proceedings) were insufficient to establish proof of trespass against the Respondents.

Counsel further argued that although the Appellant under cross-examination denied sharing a common boundary with the Respondent and that the Respondents have no land near the land in dispute, his counsel’s assertion during address that the Appellant’s land known as “Ndon Umanah Ekpo” shares a common boundary with the Respondents’ land by virtue of Exhibits A and E amounted to an admission of Counsel on behalf of client and such an admission is conclusive evidence against the Appellant. He made reference to the case of Eboade vs. Atomesin (1997) 50 LRCN P. 1133 at 1139 ratio 11 and Merotohun vs. State (1992) 7 NWLR Part 254 p. 447 ratio 5 and said that the Appellant’s evidence was rightly rejected by the trial Court.

Learned counsel further submitted that before the Appellant could succeed in his claim for damages, he must, first of all, identify the land trespassed upon and then prove that he was in possession of the particular portion of the land at the time of the alleged trespass by the other party.

Learned Counsel further contended that even if a case of trespass was established against the Respondents, the Appellant could not have succeeded in his claim for special damages because it was the items, the Appellants said were impounded by them before they invited the Police that he was claiming as special damages. He said that the Appellant never pleaded and proved that the Respondents damaged the crops harvested on the land before they were impounded. He submitted that, the Appellant having impounded all the crops harvested on the land in dispute, have not suffered any loss or damage as-to entitle him-to a claim of special damage. He also submitted that the act of harvesting those crops on the land in dispute by the Respondents cannot by itself found a claim on special damages, and that it could have been unjustifiable for the trial Court to award special damages to the Appellant.

Counsel submitted that evidence of ownership and possession over a parcel of land not in dispute but lying contiguous to the land in dispute did not establish Appellant’s claim of trespass over the land in dispute. He said that the Learned trial Judge was therefore right in his ruling that the Appellant might not have known his boundary with the Respondents as that could be the reason he alleged that they were still harvesting his crops and also farming on the land.

Furthermore, learned Counsel stated that the Respondents on the other hand, pleaded and proved that they were those in actual possession of the land as required by law. He then referred to the case of Chukwu vs. Nneji (1990) 6 NWLR Part 156 p. 363 ratio 3, paragraphs 6, 7 and 8 of the Respondents Statement of Defence regarding their acts of ownership and possession and the evidence adduced in proof of the same at p. 21 lines 20 – 26, p. 22 lines 1 – 14 and p. 23, lines 12 – 25 of the record of appeal in support. He also referred to Exhibit F being a copy of the proceedings in the District Court Suit No. 15/75 in respect of the land in dispute instituted by the father of D.W.1 (1st Respondent) against one Akpan Uko, the Appellant’s half brother and in which the Appellant testified as a witness for his half brother who was the defendant in the said case.

Counsel further submitted that the Respondents’ evidence of acts of ownership and possession were never contradicted, challenged or shaken under cross-examination by the Appellant, and having not been debunked or dislodged, it must be accepted as the correct version of what was expected to be proved. He cited the cases of Obmiami Brick & Stone (Nig) Ltd vs. ACB Ltd (1992) 3 NWLR Part 229 p. 260 at 264 ratios 9 and 10 and Aweni vs. Oloninkosedi (1991) 7 NWLR Part 213 p. 94 ratio 15 in support. He then urged that the appeal be dismissed.

In the Appellant’s Reply Brief, it was submitted ‘that once the Respondents set their feet on any portion of the Appellant’s land and there is proof of this fact, the Appellant is entitled to succeed. He referred to Osuji vs. Isiocha (1989) 6 SCNJ Part 1 p. 228 at 229 ratio 3.4 and 7 and submitted that even if no damage or loss is caused, the Plaintiff is entitled to minimal damages for trespass. He said that by the Respondents admitting that the 1st Respondent harvested palm cones from the land in dispute, the said land was therefore known to and so identified by the 1st Respondent and as such it did not warrant further identification of the land in dispute by the Appellant. He said that by the Respondents stating that the land in dispute lies contiguous to their land called ‘Ikot Esa Inyang Mbong’, the identity of the area of land in dispute trespassed upon was not in doubt.

As regards the contention on special damages, Learned Counsel submitted that once the Police impounded an item in crime, such item becomes an Exhibit for the Police investigation. The Exhibit cannot be released unless ordered by the Court. He said that no such order was obtained from the Court as no trial was conducted in the second trespass by the Respondents.

I have carefully examined the issues raised by the parties in their respective Briefs and I am of the profound view that the issues distilled by the Respondents in their Brief are more apt and cogent and as such will be adopted by this Court in determining this appeal. I, also, agree with observations of learned Counsel for the Respondents that issue No.2 is unrelated to any of the Grounds of Appeal of the Appellant as were shown in his Notice and Grounds of Appeal, and that being the case, it ought to be struck out. The same is hereby struck out. Furthermore, issue No.5 in respect of which no argument was tendered by the Appellant’s Counsel, having been abandoned is hereby struck out.

The first issue raised by the Respondent is, ‘whether with the pleading and evidence being at variance as regards the area of land allegedly trespassed, the Appellant had established his claim for trespass to be entitled to damages and whether the trial Court was right to have held that the Plaintiff failed to prove his case against the Defendant.

It is discernible from the evidence adduced by the parties during the hearing at the lower Court, that their respective evidence was in sharp conflict with one another as to the name and exact portion of the land allegedly trespassed upon.

Trespass to land in law constitutes the slightest disturbance to the possession of land by a person who cannot show a better right to possession. A trespass to land is an entry upon land or any direct and immediate interference with the possession of land. See Fagunwa vs. Adibi (2004) 17 NWLR Part 903 p. 544 where Tobi, J.S.C referred to the case of Renner vs. Annan (1935) 2 WACA 258 in which it was held, inter alia, that the comprehensive way of describing trespass is to say that the defendant broke and entered the Plaintiff’s land, and, did damage.

So, for a Plaintiff to institute or commence an action in trespass, he must show that he is in exclusive possession; exclusive in the sense that he does not share his right of possession with any other person. A Plaintiff need not show ownership of the land; proof of actual possession can sustain an action on trespass. To resist the Plaintiff’s claim, a defendant must show either that he is the one in actual possession or that he has a right to possession. See also Fagunwa vs. Adibi (supra). This is because, where two parties make conflicting claims to possession of the same land, the ………………….

“I find it odd as to how the Respondents could have in all seriousness asked for injunctive order in respect of an area of land not defined and over which the Court would not be certain of its proper limitations due to the latent short coming of the land not having been surveyed and a proper plan of the area exhibited before the Court.

In Salami vs. Gbodoolu (1997) 4 NWLR (Part. 499) 277 at 285, it was held that:

The burden on’ the Plaintiff, in the ‘circumstances, includes the requirement that it is for him to prove the identity of the land claimed by him if the parties are not ad idem on the identity of the land. See Makanjuola vs. Balogun (1989) 3 NWLR (Part 108) 192. If a Plaintiff fails to fulfill the requirement, that is, to prove or establish the identity of the land in dispute his claim for a declaration of statutory right of occupancy will be dismissed.

Although in this case the claim is not for a statutory right of occupancy but for an interest and right as co-beneficiaries which the Respondents admit they had been sharing the benefits in the land with the Appellants from time immemorial, it behoves the Respondents to make a survey plan delineating the land in dispute for the purpose of ascertaining the true nature of the land over which some form of interests are being claimed and which will enable the Court to determine the specific area of land it has to impose an order or restraints. It is my view that this is a case where the Respondents should definitely have procured survey plan having regard to the geographical location to help to ascertain the truth of the matter in controversy. I do not share the view espoused by the Court of Appeal and supported by the Respondents’ counsel that the plan of the area is not necessary on the erroneous belief that the two parties know the land in dispute.”

Then Onu, J.S.C. at p. 634, 635 and 636 said inter-alia;

“This issue in this case is not whether the same land or an agreed or identified land is being referred to in different names. Exhibit, 9 the 1915 suit relied upon by the Respondents’ shows that the identity of the land in dispute in that case was uncertain.

From the foregoing, the need to file a survey plan, in my view becomes more compelling since the Respondents’ claim was that the land in dispute extends from Ikot to the Ifiang village.

In the light of the above, even if the Respondents’ evidence on the description of the land in dispute was unchallenged (which is not the case here) there was no means or machinery for ascertaining the land as claimed by the Appellants without a survey plan bearing in mind that the Respondents admitted the existence of some autonomous villages between Ikot-Iwang and the Ifiang village and appurtenances are exclusive of the land as claimed by the Appellants.

I am therefore of the firm view that in view of the uncertainty of the land even as claimed by the Appellants, added to the fact that that land was disputed by the Respondents, with the further facts that the judgment in exhibits 2 and 9 relied upon did not contain any survey plans. It was wrong to have granted a declaration on any imprecise piece or parcel of land. Relying on the decision of this Court in Opara vs. Echue suit No. SC 396/64 (Unreported), to the effect that a previous judgment in respect of a piece of land, which is not tied to a plan, cannot operate as an estoppel. See also the (Pt. 405) 54 at 65 where Edozie, JCA as he then was, reading the judgment of the Court said.

“Indeed, it has been decided that a previous judgment in favour of any party in respect of a piece of land which is not tied to any plan cannot amount to an act of possession and I should add relied upon to raise plea of res judicata. See Opara vs. Echue (unreported SC 396/64) decided on 9/12/66. As this vital ingredient necessary to sustain a plea of res judicata is lacking, it is futile to inquire if other conditions, that is, sameness of parties and issues exist.”

From the foregoing, I agree with learned Senior Advocate that the judgments in exhibits 2 and 9 in so far as they do not purport to define the land in dispute by reference to any plan, is of little or no utility and ought not to have been relied upon by the Court below in giving judgment for the Respondent.”

In the instant case, the Appellant in his Statement of Claim filed at the Lower Court pleaded at paragraphs 4, 5, 6, 8, 9,10 and 13 thus;

“4. The Plaintiff is the owner of a parcel of land known as and called “Ndon Umana Ekpo” lying or being at Ikot Otu in Oruk Anam Local Government Area.

5. The land aforesaid was the subject of litigation at the Abak/Midim Cl)stomary Court in Suit No. 10/84 CJB/1/84 p. 52 and judgment given in the Plaintiff’s favour on 8th day of June, 1984. The judgment is pleaded and will be relied upon at the trial.
6. The said decision went on an appeal to the Magistrate’s Court Ukanafun in appeal No. UKM/19A/89 and judgment was delivered by the Magistrate’s Court on 27th day of April, 1989. The judgment again was in favour of the Plaintiff/Respondent. The judgment is pleaded and will be relied upon at the hearing of this Suit.
7. On the 6th day of June, 1989 the Defendants, Akpan Udo Udo Essien, Udo Akpan Udo Udo Essien and Akpan Akpan Udo Udo Essien went into the said land and stole palm fruits. This formed the subject of a Charge before the Magistrate’s Court, Ukanafun in Charge No. UKM/247C/89.
8. The accused persons in the said charge were convicted. The Record of proceedings in that charge is pleaded and will be founded upon at the hearing of this Suit.
9. That the Plaintiff has been exercising the right of ownership over the said land in numerous acts.
10. Between the 23rd day of November, 1991, the 27th day of December, 1991, the defendants broke into the said land and harvested therefrom cocoyams, yams sweet yams, cassava, and palm fruits planted by the plaintiff, and thereafter are continuing till the very moment to harvest the Plaintiff’s palm fruits from the said land”.

The Respondents for their part pleaded at paragraphs 2, 3, 4, 6, 11 and 12 of their Statement of Defenceas follows:

“2 The Defendant deny paragraph 4 of the Statement of Claim and in further answer aver that the land in dispute is known as and called “Ikot Esa Inyang Mbong” and not “Ndon Umana Ekpo” as erroneously called by the Plaintiff. “Ikot Esa Inyang Mbong” is lying contiguous to “Ndon Umana Ukpo” the Plaintiff’s land which is not in dispute. The Defendants shall at the trial rely on the proceedings in charge No. UKM/247C/89 where at page 2 thereof the Learned Magistrate on a visit to the Locus in quo described both land as being contiguous to each other and the said proceedings are hereby pleaded.

3. Paragraph 5 of the Statement of Claim is denied. Suit No. 10/84 was not in respect of the land in dispute which is called “Ikot Esa Inyang Mbong” but “Ndon Umanah Ekpo” which lies contiguous to the land in dispute. The Defendants have not since the judgment in suit No. 10/84 entered the subject matter of that suit. The Plaintiff is using judgment in suit No. 10/84 decided by the Abak/Midim District Court to lay claim to the Defendants’ land which is distinct and different from the subject matter of that suit.
4. The land in dispute is bounded as follows:

North – Land of Ufot Akpan Inyang

West – Land of Late Chief Jumbo Ikot Okpo

East – Land of Nkantion Ekpa Obok

South – Ndon Umanah Ekpo.

6. The Defendants in further answer aver that they have been the owners in possession from time immemorial of the land in dispute. It was deforested by the 1st to 3rd Defendants’ ancestor named and called Inyang Mbong Udo Etor. He lived thereat and exercised numerous positive acts of ownership and possession. He cultivated and planted economic/cash crops and trees e.g pears, mango, kola nut, “Ukim”, “Ukpa”, cocoanut, oil palm, raffia palm, and yam, plantain, sweet yam, cocoyam etc. He also erected ancestral shrines and deities e.g Iso Eka Idung, Iso Essien, Iso Ntuen Ibok Inyang Mbong where sacrifices were offered to the gods for protection and soil fertility. These shrines were erected and sacrifices offered without any interference from any body.
7. In further answer to paragraph 11 of the Statement of Claim, the Defendants aver that the “Ukim” tree referred to was sold on or about 2/1/87 by the 1st and 2nd Defendants’ father to one Asuquo Umoh, a sawyer from ~I Eket who hewed and’ sawed’ it. The sale transaction was reduced into writing in the form of an agreement which is hereby pleaded and shall be founded upon at the trial.

12 Paragraphs 12, 13 and 14 of the Statement of Claim are denied and the Plaintiff is put to the strictest proof of the allegation of facts contained therein.

In the Appellant’s evidence before the trial Court at pages, 15, 16 and 18 of the record of appeal, he stated as follows:

“On 23/11/91 and 27/12/91, Akpan Akpan Udo Udo Essien, Udo Akpan Udo Udo, Udo Akpan Akpan Udo Udo Essien,Udo Emmanuel Obot and Akpan Udo Ekpo entered into Ndon Umana Ekpo land and harvested my cocoyam, sweet yam, cassava and harvested my palm fruits and yam. I took the items to Ibesit Police Station and lodged a report against the trespassers and they were arrested. I am the owner of the land in dispute. I don’t’ know any land called “Ikot Esa Inyang Mbong”. There is not such land in Ikot Otu village as alleged by the defendants. Suit No. 10/84 was in respect of Ndon Umana Ekpo land. I sued one Akpan Udo Udo Essien, the father to the 1st defendant. The said suit was decided in my favour. There is no land called Inyang Mbong Etor in Ikot Otu village.

During cross-examination he stated thus:

I share no common boundary with the 1st defendant in this case.

The defendants have no land near the land in dispute in the instant case.

The disputed land is made up of 12 parcels of land. The 1st boundary of the disputed land is with “Abikpoi” land and belongs to my house. The 2nd boundary is with Ikot Oko village. The 3rd boundary is with “Ekpene Itighe” land also our land. The 4th boundary is with “Ukim Obop” land, and it is still our family land. I live on the disputed land.

Then D.W.1 at p. 20 of the record said:

“The name of the land in which the Plaintiff sues is called “Ndon Umana Ekpo”. The name of the land in dispute is called “Ikot Esa Inyang Mbong.” There is a piece of land called “Ndon Umana Ekpo”. Ndon Umana Ekpo is situate near the road while “Ikot Esa Inyang Mbong” is inside. The two share a common boundary”

The said “Ikot Esa Inyang Mbong” and ‘Ndon Umana Ekpo’ do not form one parcel of land. There are two. I know the boundaries of the land in dispute. On the North by the land of Ufot Akpan Inyang, West, Jumbo Ikot Okpo. East, Nkantion Ekpa Ebok, South, Ndon Umana Ekpo, the Plaintiff’s land.

The land was deforested by Inyang Mbong Udoetor. He was my ‘grandfather. The 3rd Defendant is my brother. The said Inyang Mbong Udoetor was also the grand father to the 3rd Defendant. After the land was deforested, the said Inyang Mbong lived thereon and also cultivated the land. He cultivated such crops as pear trees, mango trees, Iroko and Mkpa trees. He planted yam, raffia palm trees, oil palm trees and cocoyam among others.”

In Exhibit A being the judgment in Suit No. 10/84, the Appellant’s claim was:

“For Defendant to pay N100.00 being damages in that Defendant spoil the Plaintiff’s land known and called “Ndon Umana Ekpo” -\ planting plantain suckers since 10/11/83.

He then testified as follows:

“My name is Akpan Sam Adua of Ikot Otu. I am a farmer. I went to my farmland my father gave to my mother and I saw the Defendant Akpan Udo Udo Essien planting plantain, cassava. I reported to the Village Head, Chief Jumbo Ikot Akpa, but the Defendant refused to go in that I do not know who is Jumbo. Hence I filed action against the Defendant for payment of N100.00 -I damages;, The Court had decided this very case in Defendant’s absence but he come back to open this case.”

In the said proceedings in Exhibit A, although the claim was for trespass no survey plan was tendered to describe the said land with exactitude and no oral description of the land was equally adduced by the Appellant. The suit was heard as undefended in default of the Defendant’s appearance at the trial.

Even, at the criminal proceedings in Exhibit C, the 1st Respondent, as the 1st Accused and the others insisted that they harvested palm cones from their own land called “Ikot Esa Inyang Mbong” and not from the Plaintiff’s land.

It is crystal clear in the pleading of the Appellant at the lower Court that nothing whatsoever was stated about the boundaries of the Appellant’s land known as ‘Ndon Umana Ekpo’. The Respondents both in the pleading and evidence adduced by them before the lower Court, emphatically denied ever trespassing on the Appellant’s said land called “Ndon Umana Ekpo”. They asserted that whatever activities they must have carried out on any land were on their own portion of land known as “Ikot Esa Inyang Mbong” and not on the Plaintiff’s land. They out-layed before the Court, which was supported by their pleading, the features and boundaries on their said land. The Appellant did not describe the land except mentioning the name by which it is known. He did not plead the boundaries, etc. It was only in his evidence under cross-examination before the Court that he stated the boundaries which were not averred in his pleading.

It is trite that in an action for trespass, the Plaintiff must also prove the exact area of the land in his possession trespassed upon. See Ansa vs. Ishie (2005) 15 NWLR Part 948 p.210.

The identity of land in a land dispute will only be in issue if, and only if, the defendant in his statement of defence makes it one as was done by the Respondents, in the instant appeal. If he disputes specifically either the area or the location or the feature shown in the Plaintiff’s plan then the identity of the land becomes an issue. See Gbadamosi vs. Dairo (2007) 3 NWLR Part 1021 p. 282.

It is clear in the instant appeal that by the Defendants at the trial Court denying that they trespassed on the Plaintiff’s land and saying that it was only on their own land known as “Ikot Esa Inyang Mbong” with different features, and boundaries which lies contiguous to the Appellant’s land called “Ndon Umana Ekpo” they entered, they made the identity of the exact land allegedly trespassed upon an issue.

It should be noted that when Suit No. 10/84 was determined in respect of which Exhibit A was issued by the Abak/Midim District Court, the exact identity or boundaries of the said land were not given in evidence. It was merely called ‘Ndon Umana Ekpo’, which to my mind was not sufficient to establish the exact area or portion of the “Ndon Umana Ekpo” land allegedly trespassed on by the Respondents. See Archibong vs. Ita (supra) where it was stated that the judgments in Exhibits 2 and 9 in so far as they do not purport to define the land in dispute by reference to any plan, is of little or no utility and ought not to have been relied upon by the Court below in giving, judgment for the Respondents. Applying the same principle in Archibong vs. Ita (supra) on the present appeal, it seems clear that the said Exhibit A, since it was not arrived at with reference to any survey plan defining the boundaries of the alleged land in question, was really of no relevance. The Respondents emphatically denied the assertions of the Appellant.

It is my humble view, with due respect, that, since there were such conflict in the name, boundaries, and features of the land allegedly trespassed upon, and failure on the part of the Appellant to file a plan to clearly deliberate the said land, a visit to locus in quo by the learned trial Judge would have been much appropriate and it would have enabled him to resolve such conflict and ascertain who amongst the parties is actually in exclusive possession of the said land allegedly trespassed upon. The main ingredient for the act of trespass was never proved before the trial Court. What was placed before the learned trial Judge was just the evidence of the Appellant against that of the Respondents.

It should be noted that address of Counsel, no matter how well prepared and delivered, cannot take the place of evidence.

I must observe that contrary to the submissions of learned Counsel in the Appellant’s Brief of Argument, the Defendants said that ‘the land in dispute is known as “Ikot Esa Inyang Mbong and that it lies contiguous to ‘Ndon Umana Ekpo ‘the land not in dispute’. The identity of the particular land in dispute was made an issue before the lower Court, and, the Appellant failed to resolve or aid the Court in resolving the same by filing a plan, showing the boundaries, features and the exact spot that was trespassed on by the Respondents.

With this in mind, I think the learned trial Judge was right in holding that the Plaintiff has failed to prove his case against the Defendants. Accordingly, the Respondents’ issue No. 1 is hereby resolved against the Appellant.

As for issue No.2, which, intertwined with the first issue, the same will be and is hereby resolved against the Appellant. Since there was such a sharp conflict in the parties’ respective pleadings and evidence, it will be preposterous for this Court to allow this appeal.

Accordingly, this appear will be and is hereby dismissed. There will be no order as to costs.

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Other Citations: (2009)LCN/3147(CA)