Chief Walter Akpan & Ors. V. Chief Edo Ekong Umoh (Deceased) & Ors (1999)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

This appeal is from the judgment of the Court of Appeal (Enugu Division) given on the 30th day of June 1987 wherein the appeal of the Appellants to that Court was dismissed.

The Appellants are Plaintiffs in Suit No. HEK/6/75 and they sued the Defendants for a declaration of title to a piece of land known as Afaha Ubium land situate in Eket Division, one thousand four hundred Naira (N1,400.00) damages for trespass allegedly committed by the Respondents, as Defendants in that suit, in December 1966 and a perpetual injunction restraining the latter, their people etc from committing further acts of trespass on the said land. The Respondents on their part also instituted suit No. HEK/10/75 in the District Court Grade A against the Appellants claiming also a declaration that they “are the titular owners” of the piece or parcel of land set out, described and otherwise delineated in their plan ESA/656(LD) drawn by Mr. E.S. Akpan and dated 5th of July 1974, twenty thousand Naira (N20,000.00) special and general damages for trespass allegedly committed by the Appellants and perpetual injunction. I must observe that the suit numbers were not the original suit numbers of these actions but were given these numbers on the two actions coming before the Eket Judicial Division of the High Court of the now defunct South Eastern State or Nigeria. The Respondents, action in the District Court Grade A had earlier been transferred to the High Court.

Pleadings were ordered, filed and exchanged in respect of each case. On the application of the Appellants, as Defendants in suit No. HEK/10/75, the two suits were by order of the trial High Court consolidated for hearing and determination with the Appellants becoming Plaintiffs and the Respondents becoming the Defendants. In paragraphs 8 – 10 and 13 of the affidavit in support of the Appellants application for consolidation the 3rd Appellant Okon Uko Ekpe had deposed as hereunder:

“8. That the subject matter of the two suits is the same piece or parcel of land.

9. That the parties in the above suit No. HEK/10/75 are the same as the parties in Suit No. HEK/6/75.
10. That both parties in the two suits sue or are sued in the same right, as representing themselves and their respective village communities.”
11. That for a fair, just and speedy determination of the rights of the parties hereto suits No. HEK/8/75 AND HEK/10/75 should be consolidated.”

The trial of the consolidated suits came before Ndoma-Egba J. (as he then was) and after protracted trial the learned trial Judge on 23rd September, 1982 dismissed the Appellants’ case, that is, HEK/6/75 and found in favour of the Respondents on their claims in suit HEK/10/75 and adjudged as follows:

“In view of the foregoing, I declare that the parcels of land known and called Edissong, Owok Otuno, Esa Ikot Ekpo and Atarut shown in survey plans filed by the defendants in this consolidated case which are on record as Exhibits D and E, constitute the property of the defendants, the people of Nung Oku Ekanem in the former Eket Local Government Area.

The Plaintiffs (in this consolidated case), the people of Afaha Ubium, did commit acts of trespass and interfered with the said parcels of land. Edissog, Owok Otuno, Esa Ikot Ekpo, all of which were in the lawful possession of the defendants at the time averred by the defendants in this consolidated case and also find that the Plaintiffs did interfere with the enjoyment of the defendants of the said parcels of land as averred by the defendants. The Plaintiffs in this consolidated case shall pay to the defendants the sum of N2,000.00 damages for the trespass aforesaid. The claim for special damages was not specifically proved and is therefore rejected.

The Plaintiffs by themselves, their servants are hereby restrained from any further interference with the defendants land as hereby declared.”

It was against that judgment that the Appellants unsuccessfully appealed to the Court of Appeal. They have now further appealed to this Court, with leave of the Court below, on seven original and one additional grounds of appeal.

The parties filed and exchanged their respective briefs of argument and with leave of this Court, amended same. In their amended Brief of Argument the Appellants have set out 3 issues for determination covering grounds 2, 3, 4, 5, 6, 8 and 9 at the oral hearing of the appeal the learned counsel abandoned grounds 1 & 7 which were accordingly struck out. The 3 issues set out in the Appellants brief are as follows:-

“1. Whether the Court of appeal was right in upholding the order for consolidation of the suits made by the trial Court when on the evidence the identities of the land in dispute in the various suits were not proved to be identical (Ground 4).

2. Did the Court of Appeal properly determine the issue of inordinate delay at the trial and the consequent miscarriage of justice raised before it (Ground 8).
3. Whether the Respondents adduced sufficient credible evidence to entitle them to judgment for title, damages for trespass and injunction. (Grounds 2, 3, 5, 6 and 9).

The formulation of these issues was criticized by the Respondents in their own (Respondents’) brief and reformulated same. The three issues as formulated are as hereunder:

“1. Whether the Court of Appeal was right not to have reversed the order of the learned trial judge consolidating the two suits.