Anyiema Gabriel Udoma V. Chief Sunday Offong Okorie & Ors (2016)
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CHIOMA EGONDU NWOSU-IHEME, J.C.A.
The Appellant instituted this Appeal against the judgment of the High Court of Akwa Ibom State, Uyo Judicial Division delivered by Pius Idiong, J, on the 25th of March, 2013. The trial Judge granted all the reliefs sought by the Respondents in their claim and dismissed the counterclaim of the Appellant for lacking in merit. This appeal is predicated on the said judgment.
SUMMARY OF FACTS:
The Respondents, as claimants, commenced this suit at the trial Court in a representative capacity as representing themselves and on behalf of the Offong Okorie family against the Appellant (Defendant at the trial Court) claiming the following reliefs:
a) “A Declaration that the Offong Okorie Rubber Plantation situate at Ikot Ukpong village in Ukanafun Local Government Area is a bona fide and exclusive property of Offong Okorie family.
b) An Order of perpetual injunction restraining the Defendant, his heirs, agents, privies and job men from further trespassing into the Offong Okorie Rubber Plantation belonging to the claimants.
c) Special
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Damages:
(i) N4,960,000.00 – for 496 stands of Rubber Trees destroyed by the Defendant.
(ii) N74,400.00 – for 496 latex cups destroyed by the Defendant.
d) General Damages:
N5,000,000.00 for wanton and malicious damage, embarrassment and loss of income, wrongful conversion, trespass, etc.”
The Appellant on the other hand, counterclaim as follows:
”(a) A declaration that the piece or parcel of land known as and called ‘Adat Atak’ situate at Ikot Ukpong village is the property of the Defendant having devolved onto him under native law and custom of Ikot Ukpong village.
(b) An order of perpetual injunction restraining the Claimants, their agents, privies, or howsoever so called from interfering with the Defendant’s right of ownership to the said piece or parcel of land.”
The Respondents’ case at the trial Court was that they are the owners of the Offong Okorie Rubber Plantation situate at Ikot Ukpong Village, Ukanafun Local Government Area, having inherited same from their late father and grandfather, Chief Offong Okorie who planted the Rubber plantation sometime in 1898 and that it was the only Rubber Plantation in the whole
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of Ukanafun Local Government Area.
The Respondents claimed that they have been in peaceful and undisturbed occupation of the Rubber Plantation exercising all rights of ownership such as cultivating the Rubber Plantation, tapping the rubber, establishing factory within the Rubber plantation, leasing the plantation to third parties) etc.
All these rights of ownership were exercised by them until about March, 2010 when the Appellant trespassed into the said plantation, cut down several rubber trees and carted them away.
The Appellant on his side counterclaimed that he is the owner of Adat Atak Farm land. In proof of their claim, the Respondents called two witnesses and tendered two exhibits. The Appellant on his part testified in person, called one witness and tendered four exhibits in proof of his counterclaim.
At the conclusion of trial, the learned trial Judge in a considered judgment granted the reliefs of the Respondents and dismissed the counterclaim of the Appellant in its entirety. Aggrieved by that judgment, the Appellant has filed this appeal which revolves on six Grounds.
?Two issues were formulated by counsel for the Appellant
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thus:
(1) ?Whether the lower Court was right to grant all the reliefs sought by the Respondents on the basis that the parties were ad idem on the identity of the land which was the subject matter of those claims.
(2) Whether the award by the lower Court of N4,252,850.00 as special damages and N2 Million as general damages was supported by the evidence in this case.”
The Respondents’ counsel also formulated two similar issues though couched differently thus:
1. “Whether the lower Court was not right to have found that the rubber plantation in dispute was the sole and bonafide property of the Respondents and that same was clearly distinguished, identifiable and certain.
2. Whether from the totality of evidence before the Court, the award of the sum of N4,252,850.00 as special damages and N2,000,000.00 as general damages by the trial Court was not well founded.”
The two issues raised by both counsel in this appeal are similar though couched differently. I shall make use of the two issues distilled by the Respondents’ counsel in the determination of this appeal.
?Taking the issues learned counsel for the Appellant
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Essien H. Andrew Esq., contended in summary that in the present case, there was no agreement on the identity of the land in dispute and inspite of that the trial Court held at page 244 of the Records that the identity of the land in dispute was certain. Counsel argued that the said conclusion by the trial Court was perverse and that the Respondents’ reference to the land in dispute as the only rubber plantation in Ikot Ukpong village was not sufficient to identify the land.
He cited TUKURU v. SABI (2013) All FWLR (Pt. 692) 1737 at 1753; ESSIEN v. EKANEM (2010) All FWLR (Pt. 523) 1992 at 2012, etc.
On award of damages, counsel submitted that the sum of N4,252,850.00 awarded as special damages and the N2 Million awarded as General damages was not supported by evidence adduced at the trial Court and that it was erroneous for the learned trial Judge to award the Respondents special damages for a loss they did not suffer. He cited OBASUYI v. BUSINESS VENTURES LTD (2000) FWLR (Pt. 10) 1722 at 1742. Same argument goes for the award of Two Million Naira as General damages for trespass. Counsel argued that having not proved trespass, he posited, the award of
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general damages becomes unsustainable and unjustifiable.
In reply, learned counsel for the Respondents Uyo-Obong Jumbo Udom, Esq., contended that there was only one rubber plantation in their village which belongs exclusively to their family. It is the Respondents’ case that the family of the Appellant had no rubber plantation anywhere in their village.
He submitted that Exhibits C and D which were tendered by the Appellant as a basis for trespassing into the Rubber plantation showed that the land in the said exhibits were mere farmlands and that not a single rubber tree was shown to be standing on any of the two portions.
Counsel argued that the sudden introduction of three portions of land was an attempt to accommodate the area of the rubber plantation he trespassed upon and destroyed. Counsel maintained that the two portions of land Exhibits C and D did not have a direct boundary with the Respondents’ rubber plantation.
?Counsel posited that having cut down over 50 rubber trees belonging to the Respondents in his testimony and having also admitted that his own land was not a Rubber plantation, but a cassava and pumpkin farm, the Appellant
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cannot be heard to argue that the Respondents did not prove damages.
He further submitted that the land in dispute was clearly distinguished, identified and certain as the only rubber plantation in Ikot Ukpong Village and therefore did not call for a survey plan.
The Appellant’s counterclaim, counsel further contended was baseless since the Appellant was seeking declaration over Adat Atak farmland, which was not in dispute before the Court and moreso, the said Adat Atak was a vast farmland owned by several families with the Appellant owing only two very small portions. He cited ALHAJI GONI KYARI v. ALHAJI CROMA ALKALI (2001) 6 NSCQR (Pt. 11) pg. 837. LADOTUN v. OYEWUMI (2010) All FWLR (pt. 504) page 1559 at 1568 among others.
I had earlier stated that the two issues raised by both counsel are similar even though couched differently and that I prefer the two issues as formulated by the Respondents, I shall take both issues together. After going through the Records, it became clear that the main issue canvassed at the trial Court was whether the Rubber plantation known as ‘Offong Rubber Plantation’ formed part of a piece of land known as and
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called ‘Adat Atak’ which was granted the Appellant in Exhibits C and D proceedings of District Court.
A resolution of this germane issue will to a large extent determine this appeal one way or the other.
Exhibits C and D were judgment of a District Court in two separate proceedings involving two different parties and it was clear from Exhibits C and D that the Respondents herein were not parties in the said proceedings. In Paragraphs 8, 9 and 14 (page 5 of the Records), the Respondents claim was that the Appellant entered into their Rubber plantation and destroyed about 496 trees by cutting down the said trees and destroying the enamel cups hung on each tree for the collection of tapped latex, consequent upon which they sought a declaration, perpetual injunction and damages both special and general.
?While the Appellant contended that the land on which he felled the rubber trees is the same land he obtained judgment in Exhibits C and D, the Respondents’ case was that they are two different parcels of land, one a Rubber plantation and the other a cassava farm. The Respondents insisted that the Rubber plantation destroyed by the Appellant was in no
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way included in Exhibits C and D.
While the Appellant stated in Paragraph 30 of page 36 of the Records that the land he was suing for was the same land he obtained judgment in Exhibit C.
At the trial Court, the village council chairman who testified as PW4 at page 83 of the Records stated that there is only one rubber plantation at Ikot Ukpong village and that it is owned by the Respondents, he further stated that he worked in the said plantation as a youth. At page 193 of the Records, PW4 stated that he also owns a portion of land at Adat Atak farm land same way as the Appellant that he shared a common boundary with the Appellant and that there were no rubber trees on any of the portions.
At pages 84-85 of the Records, Mr. Emmanuel Udomma Udo’s witness statement on oath stated clearly that he was the person who leased the rubber plantation from the Offong Okorie family and that nobody challenged him. He also stated that before him, his uncle also leased the same rubber plantation from the family of the Respondents.
?This evidence was not controverted in any way, rather PW5 even tendered Exhibits A and B, the Lease Agreements he signed with
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the family of the Respondents.
The evidence of exclusive possession and exercise of ownership was not controverted by the Appellant.
The Appellant made heavy weather about the fact that parties did not agree on the identity of the land in dispute concerning the location, the features, the boundaries and the extent of the Respondents’ rubber plantation and the Appellant’s farm land.
Much as the easiest way of establishing the precise area of land in dispute is by a survey plan of the land, it is not in all cases of declaration of land that the Claimant must file a survey plan of the land in dispute. See GONI KYARI v. CROMA ALKALI (2001) 6 NSCQR (Pt. 11) page 837.
Where the land in dispute is known on the basis of parties’ knowledge of the land’s identity, a survey plan describing the land in dispute ceases to be a necessity.
See LADOTUN v. OYEWUMI (2010) All FWLR (Pt. 504) 1559 at 1568. I therefore agree with the learned trial Judge in his finding at page 242 of the Record.
“Such an iconic feature of the village does not require further identification in the circumstance of this case and in the face of the evidence tendered by the
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parties in this case before this Court.”
?On the issue of damages awarded by the trial Court both special and general. It is trite that in a claim for special damages, the onus is on the Claimant to specifically plead and substantiate with credible evidence the particulars of special damages to justify such an award. See OBASUYI v. BUSINESS VENTURES LTD (2000) FWLR (pt. 10) p. 1722. To this end, the testimony of PW3 during cross examination on the 27/2/2012 becomes very handy. PW 3 stated in part, thus: (see page 189 of the Records).
“…the police did not count the stumps of the cut rubber trees when they visited the scene of crime. But I had done the counting myself. The total number of stumps I counted was 419 stumps, I also counted equal number of latex cups…”
There is no doubt that the Respondents have proved that the Appellant felled 419 Rubber trees and damaged the same number of latex cups. The learned trial Judge was therefore well within the law when he awarded the sum of N4,252,850.00 in favour of the Respondents.
?It is also very clear that the Respondents used to realize about N700,000.00 per annum as proceeds from the Rubber
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plantation. It is obvious that by cutting down 419 stands of the Rubber trees that permanent damage was done to the Rubber trees and the law is that they are entitled to general damages, which the learned trial Judge fixed at N2,000,000.00.
The Rubber Plantation is in no way part of Exhibits C and D relied upon by the Appellant. The Adat Atak land is different from the Respondents’ Rubber Plantation Records show that the Adak Atak land was acquired by the village of Ikot Ukpong after their case with Afaha about the year 1928. Families of both the Respondents and the Appellant also own parcels of land therein. There is no doubt that the Appellant trespassed on the said Rubber plantation.
?In the premise, the two issues are resolved against the Appellant and in favour of the Respondents. This appeal is unmeritorious and is hereby dismissed in its entirety. The judgment of the learned trial Judge, Pius Idiong, J; delivered on the 25th of March, 2013 in suit No. HUK/18/2010 is hereby affirmed.
Since costs follow events, I award N50,000 costs in favour of the Respondents.
Other Citations: (2016)LCN/8728(CA)
