Chief Aqua Edem Archibong & Ors. V. Chief Asuquo Itong Ita & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

This is a representative action. It is between two communities in Cross River State. Ikot Iwang is one. The other is Ifiang Nsung and Ifiang Oyong. They share one name in common. It is Akpabuyo. The two communities have been in litigation for over eighty-eight years. This would appear to be the third case on record. The first one was decided in 1915. The trial Judge was Webber J., The judgment of the court is exhibit 9. It was delivered on 22nd February, 1915. The second one was decided on 3rd November, 1941. The trial Judge was Martindale, J. The judgment of the court is exhibit 2. In exhibit 9, representatives of the appellants filed an action against representatives of the respondents for a declaration of title to Isong Ifiang or Aqua Ubom. Webber, J., in his judgment, held thus:

“In this case I find from the evidence that the land in dispute called Ifiang Nsun or Aqua Ubom and including the beach land called Esuk Okon has always been and is the property of the plaintiff and the people of Ifiang Nsun who are entitled to the declaration claimed. The land has however been occupied by the defendants for a considerable period. The plaintiff states that the defendants’ people were permitted to farm on the main land and to reside on the beach land. This action was brought about principally on account of encroachments made by the defendants’ people at the beach. It is impossible to state definitely what was the extent of trespass committed by the defendants, if any at all was committed. The court therefore refuses to award any damages for trespass. The defendants and his people shall be permitted to occupy the beach land, the occupation of which according to their own evidence extended 200 yards along the bank of the river, and ‘be mile inland. As to the main land, the defendants having disputed the ownership of the land will not be permitted to farm on the land in future without the permission of the plaintiffs.”

In exhibit 2, suits No. C/1/1940, C/5/1940, C/6/1940 and C/30/1940 were consolidated. In the consolidated case, the plaintiffs, the respondents in this appeal, claimed two declarations as tenants to continue to occupy Ikot Iwang land, rendering of account in respect of moneys collected from strangers, damages for trespass and injunction to restrain the defendants, the appellants in this appeal, their agents and servants from interfering with the plaintiffs in the exercise of their rights as tenants and occupants of the said land. Martindale, J., gave the following judgment:

“Judgment therefore in C/1/1940 is entered for the plaintiffs for the injunction they seek against the 1st defendants to restrain the 1st defendants, their agents and servants from interfering with the plaintiffs in the exercise of their rights as tenants and occupants of the land known as Ikot Iwang and for a declaration that as tenants of the 1st defendants under Native Law and Customs they, the plaintiffs are entitled to continue to occupy the said land and together with the 1st defendants to cut palm nuts on the land without let or hindrance from the 1st defendants, and for an account from the defendants of all moneys received by the 1st defendants from 2nd defendants by way of rents, presents and/or tributes for cutting palm nuts on the said land; payment over to the plaintiffs of one half of such rents, presents or tributes the 1st defendants counter-claim is suit No. C/5/1940 fails … The plaintiffs’ counter-claim against the 2nd defendant succeeds … ”

In suit No. C/81/77, the present suit, filed at the High Court of Cross River State, Calabar, the respondents in this appeal, as plaintiffs, claimed the following reliefs:

“1. A declaration that the plaintiffs are traditionally and legally entitled as of right to be made a party in any formal deed of agreement touching and concerning any part of the forest or palm plantation lands at Ifiang village and Ikot Iwang village which Ifiang community and Ikot Iwang community respectively have traditionally enjoyed together in common from time immemorial.

OR ALTERNATIVELY:

A declaration that any purported deed of agreement to alienate the communal forest or palm plantation lands at Ifiang or Ikot Iwang by the defendants unilaterally without the participation of the plaintiffs is invalid and void against the plaintiffs who have a common right of enjoyment thereof with the defendants from time immemorial.

2. An Order directing the first defendant to pay over to the plaintiffs the sum of E1,500 being money held in trust by the first defendant for the benefit of the plaintiffs since 1959 and being the plaintiffs’91 share of the E3,000 which the first defendant received for and on behalf of both Ifiang community and Ikot Iwang community as rent from the Danish company which operated under a lease of part of the forest land at Ifiang belonging in common to Ifiang and Ikot Iwang respectively from time immemorial covered by survey plan No. EY/SP172 dated 21/9/57 prepared by Okon E. Eyo, Esq., Licensed Surveyor.
3. An Order directing the defendants, in particular the first defendant, to account for all rents and incomes received for leases or sales of any part of the common forest or palm plantation lands or economic trees at Ifiang and or Ikot Iwang by the defendants without the knowledge and consent of the plaintiffs with effect from 1st January 1959 up to date.
4. An Order for perpetual injunction restraining the defendants or their agents from further acts of unilateral alienation of any part of the common forest or palm plantation lands or sale of economic trees at Ifiang or Ikot Iwang to which the plaintiffs are lawfully entitled to enjoy in common with the defendants without first obtaining the consent of the plaintiffs to do so.”

After hearing evidence, the learned trial Judge, Effanga, J., dismissed the plaintiffs’ claim. He said in the concluding paragraphs of his judgment:

“I am satisfied that the plaintiffs failed to adduce any credible evidence to support their claims and I am convinced that the claim of the plaintiffs is speculative, misconceived, and lacks merit. On the other hand, I prefer the evidence of the defendants, which is credible and more probable than that given by the plaintiffs, and when put on the imaginary scale completely outweighs the evidence of the plaintiffs. See Mogaji and Ors. v. Odojin and Ors. (1978) 4 SC 91 and 95.

On the whole the plaintiffs’ case must fail. I hereby dismiss all their claims in this case.

Dissatisfied, the respondents as appellants filed an appeal at the Court of Appeal. That court gave them judgment. In his leading judgment, Akintan, JCA, declared:

“It is accordingly declared that the plaintiffs in this case are traditionally and legally entitled to be made a party in any formal deed of agreement touching and concerning any part of the forest or palm plantation lands at Ifiang village and Ikot Iwang village which Ifiang community and Ikot Iwang village have traditionally enjoyed together in common from time immemorial. The alternative claim for an order directing the 1st defendant/appellant to pay over to the appellants the sum of E1,500 being appellants share out of the rent collected by the respondents in 1959 in respect of the lease jointly executed by the parties in favour of the Danish Agricultural Company cannot be granted as the claim is statute barred. An order for perpetual injunction restraining the respondent from unilateral alienation of any part of the aforementioned common forest at Ifiang or Ikot Iwang is unnecessary having regard to the declaratory order already granted to the appellants above.”

Dissatisfied with the judgment, the appellants have come to this court. As usual briefs were filed and duly exchanged. The appellants formulated four issues for determination as follows:

1. Whether the Court of Appeal was right in granting the declaratory relief on the basis of the judgments in exhibit 2 and 9
2. Whether the land affected by the declaration has been satisfactorily proved
3. Whether the Court of Appeal was right in considering the appeal on the basis of the arguments in the respondent’s brief alone
4. Whether exhibits 9, 2, and 4 established the identity of the land in dispute

The respondents agreed with issue Nos. 1 and 2 formulated by the appellants. They formulated their issue No.3 as follows:

“(a) Whether the Court of Appeal considered the Appeal only in (sic) the basis of the arguments in respondents’ brief.

(b) Whether the approach of the Court of Appeal has occasioned any miscarriage of justice.”

At the hearing, learned counsel for the appellants applied to abandon issue No.3. There being no objection from counsel for the respondents, issue No.3 was struck out. Accordingly the arguments on the issue at page 9 and 10 will not be considered in this judgment. So too, the arguments on the respondents’ issue 3, as it was formulated along similar line with the abandoned issue 3 of the appellants’ brief. As a matter of fact, learned counsel formally withdrew the arguments on the issue. Accordingly, the arguments on the issue at pages 10, 11, 12 and 13 will not be considered in this judgment.

Learned Senior Advocate for the appellants, Professor S.A. Adesanya, conceded in issue 1 that it is perfectly right for a party in a lost suit to use a previous judgment in his favour as a foundation for subsequent suit. He cited

Ajuwon v. Adeoti (1990) 2 NWLR (Pt.132) 271. He argued that since the respondents were the defendants in exhibit 9 and did not make any counter-claim, there was no decision granting any relief to them in terms of claim 1 of the present suit.

Learned Senior Advocate submitted that the decision in exhibit 2 is presumed right unless it has been overturned on appeal and this has not happened. He however pointed out that exhibit 2 did not decide that the respondents “should be made parties to any dealing”, in particular the alienation of the land. To learned Senior Advocate, there is a world of difference between the need to obtain the permission of a third-party to a transaction and the making of such a third-party an executing party to the alienation. He submitted finally on issue No.1 that the Court of Appeal was wrong to have entered judgment in terms of claim 1 of the respondents’ claim.

Learned Senior Advocate submitted on issue No.2 that one of the primary duties of a party who seeks a declaration of title to land is to establish the identity of the land, and where there is doubt as to the identity of the land, it behoves the claimant to file a plan. He cited Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325; Baruwa v. Ogunshola (1938) 4 WACA 159 and Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192. However, the acid test whether a plan is necessary is whether a surveyor, taking a record could produce a plan showing accurately the land in respect of which a declaration is being sought, counsel contended. He cited Kwadzo v. Adjei (1944) 10 WACA 274.

The issue in this case, counsel pointed out, is not whether the same land or an agreed or identified land is being referred to in different names, but the true or correct issue is whether Ikot Iwang land extends to Ifiang village. He called the attention of the court to the admission in the respondents’ claim and acknowledgement that there are different communities by the names of Ikot Iwang community and the Ifiang community. Counsel claimed that exhibit 9, the 1915 suit, relied upon by the respondents, shows that the identity of the land in dispute in that case was uncertain. He quoted a portion of the judgment to support his claim.

Learned Senior Advocate argued that the need to file a survey plan becomes more compelling since the respondents’ claim was that the land in dispute extended from Ikot Iwang to the Ifiang village, while at the same time admitting that there were intervening villages which the respondents described and admitted in their own evidence as autonomous village. He referred to the evidence of PW4 and DW1.

Still insisting on the need for a survey plan, learned Senior Advocate contended, without conceding, that even if the respondents’ evidence on the description or ascertainment of the land in dispute was unchallenged, there was no means or machinery for ascertaining the land as claimed by the respondents without a survey plan, healing 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 respondents.

Learned Senior Advocate submitted that in view of the uncertainty of the land as claimed by the respondents, coupled with the fact that the land was disputed by the appellants, with the further fact that the judgment in exhibits 2 and 9 did not contain any survey plan, it was wrong to have granted a declaration on an imprecise piece or parcel of land. Citing Mbamaenyi v. Abosi (1995) 7 NWLR (Pt.405) 54 at 65, counsel submitted that in so far as the judgment in exhibits 2 and 9 did not purport to define the land in dispute by reference to any plan, they are of little or no utility and ought not to have been relied upon by the Court of Appeal in giving judgment for the respondents.

Upon issue No. 4 learned Senior Advocate said that in reaching its conclusion that the identity of the land has been established, the Court of Appeal relied on exhibits 9, 2 and 4. He submitted that none of the exhibits established the identity of the land in dispute. He contended that no survey plan was filed in exhibits 9 and 2 and although a survey plan was filed in exhibit 4, the survey plan relates to only part of the land being claimed in the instant case.

Counsel submitted that exhibit 9 cannot be of any assistance to the respondents in establishing the identity of the land in dispute, as the court found that the identity of even the smaller portion, which was the subject matter of the claim for trespass, was not established. While exhibit 9 was concerned with the land called Affiong Nsung otherwise called Aqua Ubom, the relief sought in paragraph 1 of the amended statement of claim is for a declaration that the plaintiffs are entitled to be made a party in any formal deed of “agreement touching and concerning any part of the forest or palm plantation lands at Ifiang village or Ikot Iwang village which Ifiang community and Ikot Iwang community respectively have traditionally enjoyed together in common from time immemorial”. Counsel pointed out that Ifiang and Ikot Iwang are distinct and separate communities. He referred to paragraph 1 of the relief claimed. Still on exhibit 9, learned Senior Advocate contended that there was no finding and in fact there was no evidence or even suggestion in the exhibit that Afiang Nsung is co-terminus with Ikot Iwang. He referred to exhibit 5 as showing that Afiang Ayong and Afiang Nsung are two separate communities. Relying on

Lordye v. Lhyambe (2000) 15 NWLR (Pt.692) 675, counsel submitted that the burden of proof of the identity of the land in dispute is on the plaintiff.

Taking exhibit 4 further learned Senior Advocate referred to paragraph 2 of the claim and submitted that the exhibit related only to a lease of part of the forest land. On exhibit 5, learned Senior Advocate contended that the exhibit never indicated which of the Afiang communities the claim of the plaintiffs related to, that is, whether it is Afiang Ayong or Afiang Nsung. On exhibit 2, learned Senior Advocate submitted once again that the exhibit is equally of no assistance to the plaintiffs/respondents in establishing identity of the land claimed.

It was the argument of learned Senior Advocate that the conclusion of the Court of Appeal on exhibits 9 and 2 is not supported either by the facts or by the earlier judgments. In view of the fact that Ifiang and Ikot Iwang are separate villages, the Court of Appeal, learned Senior Advocate submitted was wrong to have departed from the case pleaded and made by the plaintiffs/respondents. He cited Obomhense v. Erhahon (1993) 7 NWLR (Pt.303) 22. He urged the court to allow the appeal.

Learned Senior Advocate for the respondents, Chief Adetunji Fadayiro, pointed out on issue No.1 that exhibit 2 was a decision in suits C/1/40. C/5/40, C/6/40. C/30/40. which were consolidated into one and that it was the defendants/appellants in C/1/40 who raised the issue of res Judicata in their defence.

Learned Senior Advocate quoted findings from exhibit 2 and submitted that the issue of common user and the necessity of the occurrence of respondents in any transaction involving the said land has been settled in exhibit 2. It was the submission of counsel that the passage quoted at page 4 of the appellants brief was taken out of con. Relying on UTC v. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 293, learned Senior Advocate submitted that the expression of a Judge in a judgment must be taken with reference to the facts of the case which he is deciding, the issues calling for decision and the answers to those issues and that any judgment should be read as a whole.

It was the submission of learned Senior Advocate that reading exhibit 2 as a whole the rights claimed by the respondents have been decided therein and the Court of Appeal was right to have granted them in claim 1. To learned Senior Advocate, exhibit 2 did not decide that the respondents should be made a party to any dealing regarding alienation of land and that the exhibit has spelt out the rights of common user by the parties and in that respect, the respondents cannot be regarded as third parties. He pointed out that the respondents used exhibit 2 as an issue estopped and not as estopppel per rem judicatam. He cited sections 54 and 55 of the Evidence Act and Odjevwedje v. Echanokpe (1987) 1 NWLR (Pt.52) 633 at 644;

Chinwendu v. Mbamali (1980) 3 – 4 SC 31 at 48.

On issue No.2, learned Senior Advocate claimed that this is not a case of declaration of title to land but a case of common user. He submitted that the land is very certain. Counsel quoted extracts from exhibits 9 to substantiate his submission. He rejected the argument of the appellants’ counsel that because PW1 and PW2 gave evidence that there are other villages in Ifiang apart from the villages of the parties that makes the identity of the land uncertain. Counsel contended that the claim before the High Court was not in respect of villages but in respect of forest lands or palm plantations. He called in aid the evidence of PW2 at page 29 of the record . Relying on the pronouncement of the Court of Appeal on exhibits 2 and 9, learned Senior Advocate pointed out that the position taken by the appellants at the High Court was that the two exhibits were restricted only to Ikot Iwang village, but admitted signing exhibit 4 with the plaintiffs. He claimed that exhibit 4 had a plan which the appellants did not impugn neither did they file a counter plan. Citing Adepoju v. Oke (1999) 3 NWLR (Pt.594) 154, (1999) 3 SCNJ 46 at 57, learned Senior Advocate submitted that the appellants having failed to file a counter plan cannot be heard to contend that the land is not certain.

Justifying the judgment of the Court of Appeal, learned Senior Advocate cited relevant pages on exhibits 4 and 5 at pages 291 and 292 of the record and submitted that the findings are very much in line with the evidence before the court. He cited Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1 and Ajuwon v. Akanni (1993) 9 NWLR (Pt.316) 182, (1993) 12 SCNJ 32 at47. Counsel submitted in support of the finding of the Court of Appeal that the land is very much certain and known to both parties, as it is the land, the subject matter of exhibits 2 and 9; a land described in the survey plan measuring 22,900 acres attached to exhibit 4; a land in respect of which the partied litigated in 1915, 1924, and 1940 called Akira Ubom by the 1st defendants’ witness.

On the issue No.4, learned Senior Advocate adopted his submission on issue No.2. He repeated his earlier argument that the claim of the respondents is that of co-user and enjoyment of plantations in both Ikot Iwang and Ifiang Usung and not ownership of land. He called in aid exhibit 3 and the evidence of DW1 under cross-examination.

I think I can stop here in summarizing the arguments of learned Senior Advocate as they essentially repeat the earlier arguments on the identity of the land. The same story of exhibit 2, 4 and 9 vis-a-vis the evidence of witness is repeated in the rest of the brief and no useful purposes will be served by repeating the stuff. Learned Senior Advocate finally urged the court to dismiss the appeal.

I think I should first deal with the burden of proof in this matter. By section 135(1) of the Evidence Act, Cap. 112. Laws of the Federation of Nigeria, 1990, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Subsection (2) of section 135 completes section 135(1) by providing that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. See generally Elias v. Disu (1962) 1 SCNLR 361, (1962) 1 All NLR 214; Abiodun v. Adehin (1962) 1SCNLR 11, (1962) 1All NLR 550;University Press Ltd. v. I.K. Martins (Nig.) Ltd. (2000) 4 NWLR (Pt.654) 584: Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561) 339, (1998) 6 SC 72.

In civil cases, the burden of first proving the existence or nonexistence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. This is the language of section 137(1) of the Evidence Act. See

Are v. Adisa (1967) NMLR 304; Elemo v. Omolade (1968) NMLR 359; N.M.S.L v. Afolabi (1978) 2 SC 79; Kate Enterprises Limited v. Daewoo Nigeria Limited (1985) 2 NWLR (Pt.5) 116; Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24;Olaiya v. Olaiya(2002) 12 NWLR (Pt.782) 652; Udih v. Idemudia (1998) 4 NWLR (Pt.545) 231, (1998) 3 SC 50.

Although the burden of proof under section 137(1) generally remains with the plaintiff, it is not invariably so. As provided in the subsection, the burden of proof will be determined by the pleadings. It will therefore not be wrong to say that the burden of proof under the subsection fluctuates with the state of the pleadings and the level of fluctuation may at times go to the defendant, if he has asserted the positive fact therein. See Akinfosile v. Ijose (1960) 5 FSC 192:Noibi v. Fikolati (1987) 1 NWLR (Pt.52) 619. In most cases, the burden of proof lies with or rests on the plaintiff because he is the person who is making the claim. See Osawaru v. Ezeiruka (1978) 6 ’97 7 SC 135; Attorney-General, Anambra State v. Onuselogu Ent. Ltd. (1987) 4 NWLR (Pt.66) 547; Agu v. Nnadi (2002) 12 NWLR (Pt.780) 189, (2002) 12 NSCQR 128; Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172, (1989) 7 SC (Pt.11) 1.

As a matter of law, the plaintiff has the onus of proving his case and where he fails to get the appropriate findings relevant to the reliefs he had sought, he must fail. Fashanu v. Adekoya (1974) 6 SC 83. A plaintiff who asserts the truth or existence of a fact must proof it. A mere speculative observation cannot be a substitute to prove of the fact asserted. See George v. UBA (1972) 8-9 SC 264.

this appeal, the burden of proof is clearly on the respondents and that burden does not shift. It is as constant as the sun rising from the east and setting in the west; and that is the position fixed by the pleadings. See paragraphs 2,4,5,6,7,8,9, 10, 11, 12 and 13. I should mention here that since the claim is not on title to land, the plaintiffs have no burden to prove title and therefore the decision in Idudun v. Okumagba (1976) 9-10 SC 227 will not apply. The issue before this court is that of common use and enjoyment of forest or palm plantation lands.

Professor Adesanya has attacked claim 1 in his brief as not vindicating exhibit 2.

Claim 1 reads:

“declaration that the plaintiffs are traditionally and legally entitled as of right to be made a party in any formal deed of agreement touching and concerning any part of the forest or palm plantation lands at Ifiang village and Ikot Iwang which Ifiang community and Ikot community respectively have traditionally enjoyed in common from time immemorial.”

What did the witnesses say in respect of claim 1, which to me, is the “mother” of all the claims. I give claim 1 that nomenclature because apart from the alternative claim, the other claims on refund of money, account of rents to the plaintiffs and an injunctive order are parasitic on claim 1. In other words, all the three other claims will seek for survival on the basis that claim 1 succeeds PWI, in his evidence-in-chief, said: “Ikot Iwang village and Ifiang village have everything in common. Both land and what are on it belong to the two villages in common. I know a company by name Danish Nigeria Agricultural Company A/S. The above company had dealings with Ikot Iwang and Ifiang villages. The dealing with the company was in respect of land. The company made agreement with us concerning land. I was one of the parties in the said agreement. The 1st defendant was also one of the parties … We insisted that the money should be shared equally but the defendant refused to share it equally and the defendant took all the 33000.00 pounds. Up till today, the 1st defendant had not paid us anything and he did not even want to see us. The land we are talking about is the same piece of land as the one we made an agreement with the Danish company. There was a survey plan to identify the land before the agreement was made. It is in respect of that piece of land.”

The agreement was admitted through PW1 As exhibit 4. DW1, in his evidence-in-chief said at page 124:

“The places where the plaintiffs are living were given to them by the father of the 1st to 6th defendants. Apart from where the plaintiffs are living, our lather did not give the plaintiffs any other piece of land. The relationship between the plaintiffs and the 1st to 6th defendants is with respect to the land in dispute. Anything we want to do concerning the land in dispute is done after consultation between the plaintiffs and the defendants. The plaintiffs are the tenants of the 1st to 6th defendants with regard to the land in dispute. Apart from the plaintiffs we have other tenants on other portions of Ifiang land, which are separate from the one in dispute … The land which is in exhibit C which we gave to the Danish company was the land belonging to Ifiang Nsung and Ifiang Oyong. It is different land from the land in exhibit B … The plaintiffs are not entitled to any account in respect of dealings with Ifiang land. They are entitled to account with respect to the land where they are living. The plaintiffs are not entitled to be parties to any agreement made with respect to Ifiang land. The plaintiffs are not also entitled to an account with respect to any dealings concerning the land in exhibit C, that is, the land which was given to the Danish company.”

Understandably the evidence of PW1 and DW1 are in opposing camps. I should at this stage take exhibits 9, 2, 4 and 5, exhibits which are relevant for the resolution of the live issues in this appeal.

First exhibit 9: As indicated earlier, exhibit 9 is the judgment of Webber, J. It was an action filed by the appellants qua plaintiffs against the respondents qua defendants. I have reproduced the ipsissima verba of what Webber, J. said. I should not repeat myself. But I can analyse the judgment. The learned trial Judge held that the land in dispute called Ifiang Nsun or Aqua Ubom and including the beach land called Esuk Okon is the property of the plaintiffs and the people of Ifiang Nsun who are entitled to the declaration claimed. For the avoidance of doubt, the plaintiffs in exhibit 9 are the appellants in this appeal.Webber, J., could not award any damages for trespass because “it is impossible to state definitely what was the extent of trespass committed by the defendants”, who are the respondents in this appeal. The implication of the above conclusion by Webber, J., is that there was no survey plan to indicate the extent of the trespass. And that is the “song” the appellants have been singing in this appeal. Webber, J. ordered that the defendants should continue to occupy “the beach land, the occupation of which according to their evidence extended 200 yards along the bank of the river and 3/4 mile inland”. Here, Webber, J. was clear and precise in his order. He confined the present respondents to an identified area or portion of the land and it was 200 yards along the bank of the river and ‘be mile inland”.Webber, J. did not stop there. He made a specific order on the ownership of the land when he said that “the defendants having disputed the ownership of the land will not be permitted to farm on the land in the future without the permission of the plaintiffs”. This order, in my view, clearly reflects and brings out the relationship between a landlord and a tenant vis-a-vis the right of ownership and the payment of rent or tribute respectively. The tenant is entitled to use and occupy the land subject to payment of rent and good behaviour. See generally Metal Construction (WA.) Ltd. v. Aboderin (1998) 6 SC 105; Olale v. Ekwelendu (1989) 4 NWLR (Pt.115) 326, (1989) 7 SC (Pt.11) 62;Okegbe v. Chikere(2000) 7 SC (Pt.1) 106;Bosah v. Oji (2002) 6 NWLR (Pt.762) 137, (2002) 3 SC 16.

Let me take exhibit 2, the judgment of Martindale, J. The suit, this time around was instituted by the present respondents as plaintiffs. Of course, the present appellants also filed suit as plaintiffs. All the suits (four in number) were consolidated. I had earlier said so.What was the decision of Martindale, J. The learned Judge gave judgment in favour of the present respondents. He granted them an injunction against the appellants restraining them from interfering with the respondents in the exercise of their rights as tenants and occupants of the land known as Ikot Iwang. The learned Judge also granted them a declaration to continue to occupy the said land and together with the 1st defendants to cut palm nuts on the land without hindrance. The trial Judge also made an order for an account from the 1st defendant of all money by the 1st defendant from the 2nd defendant by way of rents, and all that. It is important to note that Martindale, J. was very clear that the present respondents are tenants of the present appellants. This was also the position in the judgment of Webber, J. There is however difference between the two judgments. Webber, J. in the true tenorial system of land law and tenant, held that the present respondents should only farm on the land in dispute with the permission of the appellants. He came to this conclusion because the respondents were disputing the ownership rights of the appellants.

Martindale, J., thought differently. He did not advert his mind to the issue of ownership. Although he recognized the respondents as tenants, he ordered that the tenants should continue to occupy the land together with the appellants, and cut palm nuts on the land without hindrance. He also made an order for an account flowing from the communities of the appellants to the communities of the respondents. The true interpretation of Martindale, J., judgment is that the legal rights of the tenants were raised almost to the same status with the landlords. Since there is no appeal before us on the judgment of Martindale, J., I will stop here.

What did the Court of Appeal say on the two exhibits. The court took them together hence I waited to do exhibit 2 before taking the decision of the Court of Appeal on the two exhibits. Akintan, JCA, in his leading judgment said at page 288: ‘It is clear from the 1915 judgment (exh.9) and that of 1941 (exh.2) that the present appellants had long been in occupation of the land variously described as Ifiang Nsun, Akwa Ubom, or Ikot Iwang land. They were let in through grant made to them by Nsun Anem, an ancestor of the present respondents. Although it was decided in the earlier case (exh.9) that the defendants (now appellants) should not be permitted to farm on the land in future without permission of the plaintiffs (now respondents) it is clear from the latter case (exh.2) that they subsequently got the permission to continue ,their farming activities on the land’.

It should be noted and emphasized that like exhibit 9, there was no survey plan in exhibit 2, the point learned Senior Advocate for the appellants consistently repeated when the appeal was heard. I move to exhibit 4. Exhibit 4, in the way I see it. is a lease dated 24th day of November, 1956 between Chief Okon Edem Asibong for and on behalf of the people of Ifiang Nsung and Akpabuyo Rural District. While Chief Okon Edem Asibong and the Ifiang Nsung community were the lessors, Akpabuyo and Rural District were the lessees. The lease (exhibit 4) provided that in consideration of the rent, covenants and conditions on the part of the lessees the lessors demised to the lessees “all that piece of ground situate at Ifiang Nsung Akpabuyo in the Calabar Division.” Exhibit 4 contained the usual provisions in a lease, including the lessees’ right to peaceable and quiet enjoyment of the land subject to the lessees performing and observing the covenant and conditions of the lease.

There is a plan attached to exhibit 4. The plan is titled “Plan showing the Leasehold Property of the Danish Nigerian Agricultural company A/S Estate at Ifiang Akpabuyo, Calabar Division”. Immediately, following the plan is a document titled “FIRST SCHEDULE” showing the leasehold property of the Danish Nigeria Agricultural Company A/S estate Ifiang, Akpabuyo, Calabar Division, Nigeria. Attached to the plan is also a document showing by way of a sketch Ifiang Nsung school site. And that ends exhibit 4.

The lease (exhibit 4) between the people of the appellants and the respondents did not make any reference to the survey plan attached to it. In other words. There is no nexus between the lease and the survey plan. This does not surprise me because the two documents in the way I see them, deal with two different situations: one a lease agreement between the people of the appellants and the respondents and the other showing the leasehold property of the Danish Nigerian Agricultural Company A/S Estate and Ifiang, Akpabuyo, Calabar Division, Nigeria.

Could it be that the plan is in respect of Danish Nigerian Agricultural Company A/S Estate and the two parties in this appeal, that is Ifiang and Iwang It is dangerous for this court to so speculate in the absence of evidence. After all, a court of law cannot speculate or conjecture. See Ogunye v. The State (1999) 5 NWLR (Pt.604) 548, (1999) 68 LRCN 699; Okonji v. Njokanma (1999) 14 NWLR (Pt.638) 250. (1999) 73 LRCN 3632; Nwachukwu v. The State (2002) 17 NWLR (Pt.795) 58. (2002) 2 NWLR (Pt.751) 366; Onyirimba v. The State (2002) 11 NWLR (Pt.777) 83; ACB Plc. v. Emostrade Ltd. (2002)8 NWLR (Pt. 770) 501; Where a document is speculative in content, the court is entitled not to rely on it to make an award or order. See Olalami Industries Ltd. v. NDIB (2002) 17 NWLR (Pt.795) 58, (2002) FWLR (Pt.131) 1984.

Exhibit 4 was tendered by PW1. What did the witness say

He said at page 74 of the record:

“The land we are talking about is the same piece of land as the one we made an agreement with the Danish company. There was a survey plan to identify the land before the agreement was made. It is in respect of that piece of land that we brought this action. I was one of the signatories to that agreement representing Ikot Iwang Community. The 1st defendant was a party to that agreement and he and others were representing Ifiang Community”.

Learned Senior Advocate for the respondents described the survey plan as measuring 22,900 acres. I have two major problems. The first one is that by the evidence of PWI the land in dispute is not before the court by way of a plan. I come to this conclusion because PW1 said:

“The land we are talking about is the same piece of land as the one we made an agreement with the Danish company”.

Considering the fact that the plan annexed to exhibit 4 is the plan showing the leasehold property of the Danish company, it is clear to me that the other one between the parties was not tendered in court. That is the first problem.

The second problem is the signatories to exhibit4. PW1 claimed that he was a signatory to exhibit 4. The name of PW1 is Edet Abianga. I do not see such a name in exhibit 4. One name I saw in exhibit 4 is Chief Okon Edem Asibong, who had his right hand thumbprint in the second page of the exhibit. This is followed by the illiterate jurat showing the name of the interpreter as Mr. E.B. Edion, who duly signed as witnessing the interpretation and the thumbprint. Exhibit 4 ended with the signatures of the Chairman and Secretary of Akpabuyo District Council.

The Court of Appeal, on exhibit 4, said at page 249:

“The plaintiff led evidence in support of their aforementioned pleadings and tendered the two documents. The attitude of the defence to the averment in paragraph 7 was to make a general denial. In the circumstances, it was admitted, the pleading and evidence of the plaintiffs on exh. 4 remained unchallenged. The defendants were therefore estopped from denying the fact of co-user and enjoyment of the land covered by exh. 4 with the plaintiffs.”

In order to come to a conclusion whether the Court of Appeal was right or not, in the above statement, there is need to reproduce the relevant paragraphs of the two pleadings. Paragraphs 6 of the amended statement of claim reads:

“By letter dated 6th July, 1976 the plaintiffs had requested the first defendant to render an account of all leases entered into by the first defendant on behalf of Ifiang village without the knowledge and consent of the plaintiffs concerning the communal forest lands which the two villages of Ifiang and Ikot Iwang have rights to common enjoyment pursuant to the High Court suit No. C/1/40 but without avail. The plaintiffs intend to rely on the said letter at the trial.

In reply, the appellants avelted in paragraph 7 of their further amended statement of defence.

“In answer to paragraph 6 of the statement of claim, the defendants deny that the plaintiffs are entitled to the account sought. Plaintiffs will at the trial be required to give strict proof of the leases for which they want an account and which pertain to Ikot Iwang land”.

With the greatest respect, the Court of Appeal was in error in coming to the conclusion that the above is a general denial. In my humble view, paragraph 7 is a specific denial. The defendants who are the appellants clearly joined issues with the plaintiffs who are the respondents on the issue of the latter’s entitlement to an account. The appellants did not stop there. They went further in the paragraph to prove at the trial the leases, which gave the respondents the right to ask for an account. I have searched in vain in the wording of exhibit 4 and I do not find such a condition for account. I am of the view that the respondents failed to prove that the land in dispute was clearly indicated in exhibit 4.

Let me take exhibit 5. Exhibit 5 would appear to be a letter from the appellants to the respondents. The letter reads in part:

“We are unable to concede to your fantastic demand of a half share of the rents for the following reasons:”

(a) The area of the land leased to the Danish Company does not include any land within your area of settlement and or occupation, as could be seen from the plan.

(b) Your interest in the land is merely nominal as compared with our bonafide rights and title.

(c) You had already drawn from the company the sum of1000pounds, which you shared with lfiang

Nsung people for road construction.

Under the above circumstances therefore you will agree with us that you ought not to have demanded any share of the rents, but out of our desire to co-operate with you as good neighbours we have agreed to give you a fair share that may be due to you from the rents received by us. Anyhow since you do not wish to co-operate, we are referring your attitude in this matter to the District Officer who had advised our joint consent and agreement over this matter.

In our reference to the C.O. we shall inform him that since you don’t want to co-operate with us, we are now receiving our rents direct from the Danish Company upon the following grounds:

(i) That Ifiang Ayong and Ifiang Nsung are the real owners of the land leased and for which payment of rents is to be received.

(ii) That we are responsible to you as far as the payment of your share of rents is concerned.

(iii) That you are at liberty to demand the said share from us at any time after receipt from the

company”.

On exhibit 5′, the Court of Appeal said at page 291:

“Similarly the learned trial Judge was also wrong to have concluded that the letter (exh.5) was of no help to the plaintiffs’ case but rather goes against it. This is because from the admissions made therein by the writer, it was clear that the respondents were at least about to receive the rent due on the lease to the Danish Agricultural Company. The appellants were also requested in the letter to contact the writer for their share later after they (respondents) must have received the money. There is therefore merit in the appeal in respect of the 5th issue”.

What is the admission the Court of Appeal is relying upon Is it one that the appellants were about to receive payment from the Danish company If so, (and it is so) from the above statement of the court, how does that help the respondents in this appeal An admission, in order to be useful to the adverse party, must relate or affect the live issues in the matter. One of the live issues in this appeal, if not the only live issue, is that the respondents are in the language of claim 1 “entitled as of right to be made a party in any formal deed of agreement touching and concerning any part of the forest which Ifiang community and Ikot Iwang community have traditionally enjoyed in common from time immemorial “. In other words, both the respondents and the appellants were equally entitled to the share of rents and other goodies.

It is not my understanding of exhibit 5 that the appellants so admitted. On the contrary, exhibit 5 was firm when it said: “(a) The area of the land leased to the Danish company does not include any land within your area of settlement and or occupation as could be seen from the plan. (b) Your interest on the land is merely nominal as compared with our bonafide rights and title. (c) You had already draw (sic) from the company the sum of 33,000poundswhich you share (sic) with Ifiang Nsung people for road construction”.

Exhibit 5 was so clear as to the ownership of the land in dispute when it said:

“That Ifiang Ayong and Ifiang Nsong are the owners of the land leased … ”

In my view, exhibit 5, is a little bit above a gentleman’s agreement as it affects or relates to the payment of some money to the respondents by the appellants as when the appellants receive payments from the Danish company. In the circumstance, the Court of Appeal, with respect, was wrong in placing a status of admission of exhibit 5. Exhibit 5 has no such status in respect of the live issues in this appeal.

I should now take the issue of survey plan. While Professor Adesanya submitted that there was need for a survey plan as the land in dispute was not identifiable, Chief Fadayiro held a contrary view. To him, there is no need for a survey plan, as the land in dispute was known to the parties. He relied heavily on some of the exhibits I have already dealt with.

It is trite law that where a land in dispute is not identifiable by one of the parties and therefore not identified, a survey plan is a desideratum. A survey plan is not only necessary in an action for declaration of title to land; it is also necessary in the situation and circumstances of this appeal where the identity of the land is in dispute. I am not creating the impression that the production in evidence of a survey plan of the land, the subject of the dispute is a sine qua non in all land cases. What is necessary is that the land the subject of the award must be ascertained with definitive certainty. The acid test, in Kwadzo v. Adjei (1944) 10 WACA 274 is whether a surveyor, taking the record of the proceedings in the case can produce a plan showing accurately the land in which the dispute has arisen. The principle that the land, the subject of the litigation must be certain is of universal application in the con of land disputes, as it applied to this case where the certainty of the land is in dispute. See Arabe v. Asanlu (1980) 5 – 7 SC 78 and Lbenye v. Agwu (1998) 11 NWLR (Pt. 574) 374, (1998) 9 – 10 SC 18.In Omoregie v. ldugiemwanye (1985) 2 NWLR (Pt.5) 41, the Supreme Court held that one of the ways of showing the specific area of land claimed is to file a plan of the area; such plan being property orientated, drawn to scale and accurate and reflecting the boundary features. See also Lawson v. Afani Continental Co. (Nig.) Ltd. (2002) 2 NWLR (Pt.752) 585, (2002) FWLR (Pt. l09) 1736.

The burden is on the respondents to prove the boundary of the land in dispute. See Ekwealor v. Obasi (1990) 2 NWLR (Pt.131) 231; Onuwaje v. Ogbeide (1991) 3 NWLR (Pt.178) 147; Reg. Trustees M.M.H.C. v. Adeagbo (1992) 2 NWLR (Pt.226) 690;Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182, (1989) 1 SC (Pt.II) 1;

Akulaku v. Yongo (2002) 5 NWLR (Pt. 759) 135, (2002) FWLR (Pt.100) 1228. The respondents have not discharged the burden of proving with definitive certainty the land which they claim they are entitled to be made a party in any deed of agreement and account there from.

Learned Senior Advocate for the respondents dealt with the failure of the appellants to file a counter-plan. An adverse party can only file a counter plan where there is an existing plan. The main purpose of a counter plan is to counter or counteract an existing plan, to expose it as incorrect or inaccurate. Accordingly, where there is no existing plan, as in this appeal, there is no need for a counter plan as there is nothing to oppose, challenge or counter. I can still take the issue one step further and this is obiter. Where a party has filed a plan, which the adverse party feels does not adequately address the claim before the court, he need not file a counter plan. After all the burden is on the party relying on the identity of the land to succeed in his case to prove such identity.

Let me take claim 1 for what it is worth. The claim is that the respondents are traditionally and legally entitled to any formal deed of agreement in respect of any part of the forest or palm plantation land which the two communities have traditionally enjoyed in common from time immemorial.

The burden of proving the above claim is on the respondents. In this respect, they have to prove their traditional and legal entitlements beyond the portion of land given to them. The claim talks about “time Immemorial”. This has to do with going back to ancient times. It also means beyond human memory.

Did the respondents prove the claim I think not. I have taken time to examine exhibits 9, 2, 4 and 5 relied upon in this case and I do not see any justification for claim 1. If anything, there is plethora of evidence that the respondents are tenants of the appellants. Even exhibit 2 which is most complimentary to their case, Martindale. J. recognized the status of the respondents as tenants. Let me quote the Judge at the expense of prolixity:

“Judgment therefore in C/1/1940 is entered for the plaintiff for the injunction they seek against the 1st defendants, their agents and servants from interfering with the plaintiffs in the exercise of their rights as tenants … ”

I think I can stop here in the quotation. The learned Judge said quite clearly the rights of the respondents as tenants.

The claim does not only look funny but ridiculous and wears the tallest ambition. The claim is precipitate. I say this because the claim is clearly against all known canons of our land tenure system both in customary law and under the Land Use Act. When did a tenant claim to share common and equal rights over property with the landlord or overlord, the owner of the property This is against the all other rights of the owner of the property. It is also against the tenorial duty of the tenant to pay rent for the purposes of enjoying a peaceable right to the property, for the period of the tenancy, subject to good behaviour. See generally Pan Asian Ltd. v. NICON Ltd. (1982) 9 SC 1; Yusuf v. Kode (2002) 6 NWLR (Pt. 762) 231, (2002) FWLR (Pt.66) 464; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514, (1989) 2 SC (Pt.l) 69; Olale v. Ekwelendu (1989) 4 NWLR (Pt.115) 326, (1989) 7 SC (Pt.11) 62;It is my view that the respondents did not prove claim 1, and I so hold. Since all the other claims rest on claim 1 for survival, I need not say more on them.

I think Webber, J., dealt with this matter adequately. Let me reproduce part of the order he gave which I quoted at the beginning of this judgment:

“The defendant and his people shall be permitted to occupy the beach land, the occupation of which according to their own evidence extended 200 yards along the bank of the river, and 3/4 mile inland”.

In the light of the above, the respondents are only entitled to the portion of land given to them by the appellants. They do not have any legal right to go beyond what was given to them by the appellants.

The appeal is allowed. I hereby set aside the judgment of the Court of Appeal and restore that of the trial court dismissing all the claims. I award NI0,000.00 costs against the respondents in favour of the appellants.

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SC.103/1995