Chief Jacob Ibanga & Ors V. Chief Edet Usanga & Ors (1982)

LawGlobal-Hub Lead Judgment Report

G. IRIKEFE, J.S.C 

This case can rightly be described as having had a chequered history. The writ commencing the action was issued in the Calabar Judicial Division of the then High Court Of Eastern Nigeria on 21st April, 1964. Pleadings were exchanged between the parties and the action was tried by Ikpeazu, J., in 1967 at a session of the Ikot Ekpene High Court sitting at Uyo, when that part of Nigeria then designated as Biafra, was in rebellion against the Federal Government of Nigeria.

The said trial, at the end of the rebellion, was declared a nullity and the present appeal is the outcome of a new trial held before Ete, J., (as he then was), in 1975, some five years after the end of the Biafran insurrection aforesaid.

The writ commencing the action reads:- “The plaintiffs’ claims against the defendants are as follows:-

1. 600 (Six Hundred Pounds Sterling) damages for trespass in that the defendants have since January, 1964 unlawfully entered upon that piece or parcel of the plaintiffs’ land known as Ebere Otu Nsai Land (Alias Ebeto Nsai Land) which is a portion of Afaha Nsai Land situate in the Itu District of Uyo Province and bounded as follows:On the West by the Land of Afaha Nsai People.

On the North & East by Iyere River.

On the South by Mbo River…………….

and committed the following acts of trespass thereon, to wit:

(a) clear portions of it for farming and farm

(b) collect palm fruits

(c) tap palm-wine

(d) maliciously damage the Plaintiffs’ Cassava Farms all in flout of Plaintiffs’ Title (already determined by court action) to the ownership thereof, and therefore to the exclusive possession, occupation, enjoyment and/or use of the same and inspite of strong resistance by the Plaintiffs to these several acts by the Defendants enumerated above.

2. An injunction to restrain the defendants, their agents, servants and/or tenants from further interference with the Plaintiffs in their exclusive possession, occupation, and/or use of the said EBERE-OTU LAND afore-mentioned.”

Pleadings were ordered and exchanged between the parties.

The case of the plaintiffs now appellants rested on the following averments:-

(1)(a) The plaintiffs on record are the principal chiefs of and/or Elders in Afaha Nsai Village and suing for themselves as such and/or as the accredited representatives of the people of Afaha Nsai Village who are the real plaintiffs in this suit.

(b) The defendants on record are the Principal Chiefs of and/or Elders in Afaha Obio Eno Village and are being sued as the accredited representatives of the people of Afaha Obio Eno Village who are the real defendants in this suit.

(2) The piece or parcel of land in issue in this suit is known as and/or popularly called Ebere-otu Nsai Land alias Ebeto Nsai Land, and is a piece and/or portion of Afaha Nsai Land which is communally owned by the people of Afaha Nsai Village aforesaid. It is situate in the Itu District of Uyo Division of Uyo Province within the jurisdiction of the above High Court and is bounded as follows:- On the West by the Land of Afaha Nsai people.On the North and East by the Iyere River. On the South by the Mbo River. It is properly set out, described and/or otherwise delineated in a Plan No. JJ No. 43/64 by Mr. Josephus Theophilus John, Civil Engineer and Licensed Surveyor, and will be referred to hereinafter as the land in issue simply.

(3) The Afaha Nsai Land, of which the land in issue is a piece and/or portion, has from time immemorial been the property of the Plaintiffs by right of first occupation of the same by their Ancestors and has since been in the exclusive occupation, possession, enjoyment and/or use of the said plaintiffs’ ancestors and their successors-in-title who have exercised maximum acts of ownership over the same in accordance with native law and custom without let or hindrance from the defendants or any one else until in recent years.

(4) The land in issue as described in para.2 above has been the subject matter of litigation between the two parties herein in recent years and the proceedings (including pleadings and plan) and judgments in the following suits, amongst others, will be founded on at the trial:-

(a)IN THE CLAN COURT OF IBIONO

C/S NO. 1/49JACOB IBANGA & ORS.

ON BEHALF OF AFAHA NSAI

V.

EKPE UMANA OF AFAH OBIO

CLAIM: “A declaration of title to the land known as EBERE OTUNSAI” valued at 300 Pounds.”

ii. “An injunction to restrain defendant from entering into his land known as EBERE OTU NSAI.”

JUDGMENT:-“For plaintiff for his land and 7/6d costs. Defendant and/or his agent or agents are restrained from further trespass.

“PARTIES PRESENT”

“Defendant applies for review on the grounds that the land was in his ancestor’s occupation Adjd. for land inspection.

Sgd. R. A. Clarke

A. D. O. 28 May, 1949.

“I have inspected the land and heard both parties in situ, I can see no reason to interfere with the judgment of the court below. N. C. upheld.

Sgd. R. A. CLARKE

A. D. O. 16/8/49

(b) In the Native Court of Iyere Group

Suit No. 331/51

Ekpe Umana

Nkop Uduk

Nelson Udofia

for themselves and on behalf of the people of Afaha Obio Eno…………. Plaintiffs

and

Jacob Ibanga

Akpan Okon

Akpan Udo Ndon

for themselves and on behalf of the people of Afaha Nsai

PARTICULARS OF CLAIM

1. “Declaration of title to the piece or parcel of land known as Ebet Otu situate and being at Afaha Obio Eno, itu District, Calabar Province, the said land to be particularly described, delineated on a plan to be produced at the hearing.
2. “An injunction to restrain the defendants, their servants and agents and each and every one of them from further interference with the Plaintiffs’ land. – which was the after writ issued transferred to the Supreme Court (as it then was) of the Calabar Judicial Division for adjudication and therein discontinued – Suit No. C/41/1951 of this court refers.

(c)IN THE NATIVE COURT OF IYERE GROUP

SUIT NO. 441/52

Between:

1. Nkop Uduk
2. Nelson Udofia, for themselves and on behalf of the people of Afaha-Obio Eno, Itu District……. Plaintiffs

AND

1. Akpan Okon
2. Ben Etuk Udo, for themselves and on

behalf of the people of Afaha Nsai, Itu

District………………. Defendants

PARTICULARS OF CLAIM

The plaintiffs’ claim against the defendants jointly and severally is as follows:-

(1) “Declaration of title to the piece or parcel of land known as Obot Adakha Adat Aya situate and being at Agaha Obio Eno, Itu Division, Calabar Province, the said land to be particularly described and delineated on a plan to be produced at the hearing.

(2) “An injunction to restrain the defendants, their servants and agents and each and every one of them from further interference with the plaintiffs’ land which suit was again transferred to the Supreme Court (as it then was) of the Calabar Judicial Division for hearing and therein discontinued after pleadings and plan had been filed – SUIT NO. C/5/33 of this court refers.

Since January 1964 the defendants have unlawfully entered upon the land in dispute and in flout of the exclusive occupation, possession, enjoyment and/or use of the same by the plaintiffs and collected palm fruits, tapped and felled plaintiffs’ palm wine thereon, maliciously damaged the plaintiffs’ cassava farms thereon, cut down timber trees therefrom (which were sawn into planks), destroyed palm trees and made farms thereon. The areas and/or localities of the various acts of trespass complained of are para.2 above.

6. The plaintiffs therefore claim from the defendants as follows:-

“(a) Special Damages

i. The value of Palm Fruits collected 3,250pounds

ii. The value of Wine Palms tapped 320pounds

iia.The value of Wine Palms felled 330pounds

iii. The value of Cassava Farms

destroyed 350pounds

iv. The value of Timber Trees cut down

and sawn into planks 340pounds

v. The value of Palm Trees destroyed 330pounds

vi. The rental value of the farming

lands occupied 330pounds

(b) General damages 3,150pounds

Total 3,600pounds”

The defendants, now respondents, in their Statement of Defence deny that the land in dispute is owned by the appellants. They did so, inter alia in the following paragraphs of their amended Statement of Defence:-

“4(a) The defendants deny paragraph 2 of the Statement of Claim and say rather that the whole area of land in dispute or any part thereof is not known and called Ebere-otu Nsai Land alias Ebeto Nsai Land. It is not the communal property of Afaha Nsai Village, but lies and situate in Afaha Obio Eno as the property of Afaha Obio Eno Village and people, known and called “Obot Adaka Adat Aya” Land.

(b) The area of land in dispute as indicated by the defendants is more particularly delineated and verged “Pink” on the Survey Plan No. RIM/2919 LD as amended and dated the 29th day of March, 1975, prepared by MR. R. F. UKO – Licensed Surveyor, which plan is filed with this amended Statement of Defence. The land in dispute is bounded as follows:-

(i) On the North partly by the land of the plaintiffs – “Ebere Otu”, and partly by the land of Mbiabong Itam Village

(ii) On the South by the land of the Defendants.

(iii) On the East by the land of Mbiabong Itam Village and

(iv) On the West partly by the land of the plaintiffs and partly by the land of the defendants.

(5) The defendants deny paragraph 3 of the Statement of Claim. In further answer to paragraph 3 of the Statement of Claim, the defendants state that the land in dispute has been the communal birth-right property of the defendants from time immemorial dating to the first ancestors and that it has been in an undisturbed ownership, possession/occupation of the defendants’ ancestors, and thereafter of the defendants until the plaintiffs recently interferred with that ownership and possession. The defendants in exercise of their right of ownership and possession had their shrines, farms and homes on the land in dispute and had leased part thereof to “Efik” traders in ancient days to build stores for trade and storage of their palm produce. The defendants carried out all these acts of ownership of the land in dispute without leave, nor licence of the plaintiffs.

(6) The defendants deny paragraph 4(a) of the Statement of Claim as the defendants were not sued as the representatives of the people of the present defendants’ Village Afaha Obio Eno.

(7) Paragraph 4(b) of the Statement of Claim is admitted, but the defendants contend that the withdrawal of the Suit did not mean that the land in dispute had been adjudged in favour of the present plaintiffs.

(8) In answer to paragraph 4(c) of the Statement of Claim, the defendants state that the High Court Suit No. C/5/53 was withdrawn by the chiefs, elders and people Ibiono on the agreement of both parties to the SUIT, for settlement by Arbitrators. The arbitrators from their enquiries found as a fact that the land the plaintiffs claimed in SUIT C/3/53 belonged to the people of Afaha Obio Eno. The defendants will found on the proceedings and findings of the Arbitration Committee.

(9) That defendants deny paragraph 5 of the Statement of Claim and will put plaintiffs to the strictest proof thereof.

(10) In answer to paragraph 6(a) (i) – (b) of the Statement of Claim the defendants say that the plaintiffs are not entitled to all or any of the claim contained therein, and at the trial the defendants will plead all the legal and equitable defences open to them, among which are:-

(a) That the action as constituted is misconceived in law and ought to be dismissed with heavy costs.

(b) That the basis for this action in trespass is wrong in law and the claim ought to be dismissed.

(c) Estoppel in Pais, and ownership, long and continued possession.”

The action proceeded to trial and at the end thereof, the court of trial found in favour of the appellants. The learned trial Judge in recording his decision stated thus:- “I therefore give judgment in favour of the plaintiffs.

Order: Judgment for plaintiffs for N200 general damages with N500 costs. There will be an order of perpetual injunction against the defendants, restraining them from any further trespass upon the land.” The respondents being dissatisfied with the above decision appealed to the Court of Appeal which court, after a most exhaustive examination of the proceedings in the court of trial, allowed the appeal, set aside the decision of the said court including the order for damages and injunction. The appellants, who were the successful parties in the court of first instance, have now appealed to this court.

In his brief before this court, Chief F.R.A. Williams, SAN, set down three questions as arising for determination in this appeal, namely:-

(a) Was the Federal Court of Appeal correct in dealing with the case on the footing that there was no claim for perpetual injunction

(b) Was title to the disputed land in issue at the trial

(c) Did the plaintiffs succeed in proving a case for trespass against the defendants; and

(d) If so, did the defendants succeed in proving a valid answer to such claim

Broadly, the learned appellants’ counsel’s contention was that from the printed record, the Court of Appeal was in error in asserting that title to the disputed land was not an issue between the parties. The case, in counsel’s submission, was fought on the footing that either party was entitled to succeed as exclusive owner of the disputed land. Although counsel conceded that a claim for injunction which was incorporated in the writ did not form part of the appellants’ Statement of Claim, and as such, would be deemed to have been abandoned, he argued that this omission, as stated by the respondents’ counsel before the Court of Appeal, was due to inadvertence by the counsel who settled the pleadings, and that it would have been proper for that court to have amended the pleadings to reflect a claim for injunction.

Counsel argued further that, neither side was misled or prejudiced by the omission of the claim for injunction as the case was in fact fought in the belief that there was such a claim. Counsel drew the attention of the court to the evidence of the 3rd plaintiff at the trial where he had this to say during his evidence-in-chief:- “We are claiming from the defendants N1,200 as damages as set out in our Statement of Claim. They are still committing acts of trespass as at present. We are also praying for an order of perpetual injunction against the defendants.” Lastly, counsel drew the attention of the court to the address of the respondents’ counsel before the court of trial when he stated thus:- “It will not be judicious to grant an injunction against defendants. This if granted will virtually mean granting possession to plaintiffs a thing they had failed to prove.” By this reference, counsel was at pains to show that both sides were in no doubt that the claim for injunction was at the very heart of the proceedings.Where, as in this case, there is a claim for damages for trespass, counsel stated that one would have to look at the pleadings in order to determine whether title is an issue for trial. On proof of trespass, counsel was of the view that the Court of Appeal erred in reversing the decision of the lower court on the ground that the appellants had failed to prove exclusive possession of the land in dispute, because according to that court, Exhibit “A” (The 1949 Native Court Judgment) upon which the appellants anchored their claim to title, appeared to have reserved in the respondents, right of access to certain unspecified portions of the land. Counsel stressed the fact that the construction placed by the Court of Appeal on the 1949 Native Court Case was not an issue joined between the parties on the pleadings and that counsel appearing for the respondents who argued for the appellants in that court should not have been allowed to canvass that issue. But for this apparent error, counsel maintained that, as the respondents had in their case in the lower court admitted entry as of right on the disputed land, there would have been no defence to the claim for trespass. Learned counsel appearing for the respondents, Dr. Ibik, virtually repeated all his arguments in the Court of Appeal and laid emphasis on that portion of Exhibit “A” which conferred access to the disputed land on the respondents. Although counsel had strenuously opposed the application for an amendment to raise injunction as an issue before the Court of Appeal, he had now before us, re-considered his stand, and would not now oppose such an application.

The decision of the Court of Appeal upholds that of the lower court in the following vital aspects, namely:-

(a) that the parties are agreed on the identity of the land in dispute and that it was the same land which was the subject of the litigation in Exhibit “A” (Suit No. 1/1949 Ibanga & Ors. v. Umana in the Clan Court of Ibiono);

(b) that Exhibit “A” was prosecuted in a representative capacity and as such, is binding on the respondents;

(c) that exhibit “A” had settled the issue of title between the parties in favour of the appellants

The land in dispute, which is the same land referred to in exhibits F, G, H and “J” is shaped like a triangle with the village of the appellants abutting the base while that of the respondents lies at the apex. It is no doubt the law that where possession is doubtful or equivocal the law attached it to title .See Odunsi v. Kuforiji & Anor. 19 NLR p.7 in which the decision in Canvey Island Commissioners v. Preedy (1922) 1 Chancery p.179 was cited with approval. See also Ojiako & Ors. v. Ogueze & Ors. (1962) 1 All NLR p. 58. In the Ojiako’s case, the facts are not dissimilar with those in the case in hand. There had been a prior litigation in the Native Court for title, damages for trespass and injunction but a survey plan of the land in dispute had not been produced. This was followed by an action in the High Court over the same land which was now tied to a plan. It was held inter alia:-

(a) That where no question of nullity arises, once the judgment of a competent court is perfected, it is valid until set aside by a competent authority.

(b) There can be no presumption against the validity of such a judgment.

(c) The decision of one competent court is of no less binding effect than that of another competent court.

(d) The discretionary remedy of a declaration of title presents special features as regards the defence of judgment recovered; and the Federal Supreme Court will not disturb such a declaration, even though a similar declaration as to the same land had been granted by a competent court in earlier proceedings between the parties, if the second declaration adds something to that already granted; such as, in this case, the making of the second declaration with reference to a plan.

(e) Since the trespass was a continuing one, the award of damages and of injunction granted by the High Court would not be disturbed.

It seems to me beyond argument that the Court of Appeal was in error in reversing the decision of the trial court on the ground that the respondents were entitled to possession of unspecified portions of the disputed land as pledgees or otherwise. The respondents did not join issue with the appellants on this, and on all the authorities it was not open to the Court of Appeal to have brought up this issue on its own. The main plank of the appellants’ case, as I had stated earlier in this judgment is Exhibit “A”. Not only did the respondents by paragraph 6 of their amended Statement of Defence deny paragraph 4(a) of the appellants’ Statement of Claim which dealt with Exhibit “A” but they went on to contend that in any event, the defendant in that case was sued in his personal capacity.

It is plain, therefore, that the respondents did not intend to rely on the following passage appearing in the “summing up” by the Native Court which the Court of Appeal regarded as vesting certain rights in the appellants:- “The ancient boundary is the AMBO STREAM. The founders of both Afaha Nsai and Afaha Obio Eno were brothers and each had never crossed the Ambo Stream to work on either side.

We are perplexed why the defendant and his people should own swamps in this land. It might be plaintiff’s people pledged some of these swamps to defendant’s people or it was in the time of might over the weak that defendant usurped these swamps. We have instructed the plaintiffs to redeem such lands from defendant which were pledged, otherwise, defendant will use such lands until they are redeemed. The natural boundary is the AMBO STREAM. Defendants have trespassed”…….(Underlining Mine.)

JUDGMENT

For plaintiff for his land and 7/6d cost. Defendant and or his agent or agents are restrained from further trespass.”

One can readily understand why the respondents did not choose to rely on the underlined portion of the summing up. This would have been inconsistent with the case set out in their pleadings which was of outright ownership of the entirety of the disputed land from time immemorial. Furthermore, if the respondents were minded to rely on the underlined portions, the onus would have been on them to admit to having lost the contest on title, subject to those pledged portions, which they would have been obliged to specify on their plan.The desirability of cases being tried on issues specifically pleaded has the support of several decisions of this court. The following are but a few:- Idahosa v. Oronsaye (1959) 4 FSC 166 at 171; Bada v. The Chairman L.E.D.B. S.C. 501/65 of 23rd June, 1967; Erinle v. Adelaja S.C. 332/1966 of 6th June, 1969; Ferdinand George v. U.B.A. (1972) 8/9 S.C. 264 at 275.

In National Investment & Properties Co. Ltd. v. Thompson Organisation Ltd. (1969) NMLR 99 at 104 – this court observed as follows:- “A plaintiff must call evidence to support his pleadings, and evidence which is infact adduced which is contrary to his pleadings should never be admitted. It makes no difference, as Chief Akin Olugbade suggested, that the other side did not object to the evidence or that the Judge did not reject it. It is, of course, the duty of counsel to object to inadmissible evidence and the duty of the trial court anyway to refuse to admit inadmissable evidence, but if notwithstanding this, evidence is still through an oversight or otherwise admitted, then it is the duty of the court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.” See also Emegokwue v. Okadigbo (1973) 4 S. C. per Fatayi-Williams, J.S.C., (as he then was). See also Shell B. P. Ltd. v. Abedi & Ors. (1974) 1 All NLR 1 at 13 and 16 where this court per Fatayi-Williams, J.S.C., (as he then was) stated, as follows:- “The Abadiama people are bound by their pleadings and their case must stand or fall by the averments in those pleadings. The learned trial Judge was therefore in error in making out for them a case which they have not made for themselves…” It is now settled that in any action in the High Court the parties are bound by their pleadings. Their case stands or falls by the averments in those pleadings and the evidence adduced in support of those averments. Any evidence not supported by the pleadings should be ignored as it goes to no issue.”

I think learned counsel for the respondent was right in stating that he would not now resist an amendment of the pleadings in order to reflect a claim for perpetual injunction. As I had stated earlier, this action was fought on the footing that there was in fact such a claim. Furthermore counsel for the respondent had addressed the court on it. No new issues were being raised by the amendment sought. The evidence on injunction had already been given and the effect of the amendment of the pleadings would be to enable the court utilise evidence already given and not objected to. No irreparable harm would be caused by this type of amendment and it is clearly a situation which can be met by an award of costs. See Amadi v. Thomas Aplin Ltd. (1972) 1 All NLR 409 in which England v. Palmer 14 WACA 659, and Oguntimeyin v. Gubere (1964) 1 All NLR., were cited with approval. See also Akinkuowo v. Fafimoju (1965) NMLR P. 349. See also Loufti v. Czarnikow Ltd. (1952) 2 AER at p. 823 per Sellers, J. This case decided inter alia – that an amendment may be allowed –

(a) Where the matter involved has been raised in the course of the trial and counsel had addressed the court on it, since it will be merely incorporating in the pleadings that which has emerged in the course of the case as an issue between the parties.

In the result, this appeal succeeds and it is allowed. The decision of the Court of Appeal in this matter including the order as to costs dated 20th November, 1978, is set aside. The decision of Ete, J., (as he then was), dated 12th March, 1976, is hereby restored in its entirety. The appellants’ pleadings in the court of first instance are hereby amended to include a claim for perpetual injunction as embodied in the judgment dated 12th March, 1976 aforesaid. Costs awarded in the Court of Appeal, if paid, are to be refunded forthwith. There will be N300 costs in favour of the appellants against the respondents in this court.

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SC.62/1981