Michael Eyo V. Emeka Collins Onuoha & Anor (2011)

LAWGLOBAL HUB Lead Judgment Report

A. M. MUKHTAR, J.S.C

In the High Court of Akwa Ibom State, sitting in Uyo, the plaintiff who is the appellant in this appeal instituted an action against the respondents seeking the follow reliefs:-

“1. SPECIAL DAMAGE : (sic)

(a) Six orange trees destroyed ……

General damages .. .. .. N491,700.00

TOTAL .. .. .. N500,000.00

2. A declaration that the plaintiff is entitled to the certificate of occupancy in respect of the land being and situate beside the building at No. 221 Oron Road, Itiam Ikot Ebia, Uyo, and which said land is more particularly described in Survey plan No: AS/K146/92LD dated 18th December, 1992.
3. Perpetual injunction to restrain the defendant his agents, servants and privies or otherwise from further trespassing or entering upon the land being and situate beside the building at No. 221 Oron Road, Itiam Ikot Ebia, Uyo, and which said land is more particularly described in survey plan No: AS/AK146/92LD dated 18th December 1992.”

The plaintiff traced the traditional history of the land to Udo Ekpo Ikpa of Nung Aduak family more than 200 years ago. As a result of the inability to refund a betrothal fees already paid by Udo Ekpo Ikpa to Udo Udo Akpaetim, who was the great grand father of the plaintiff Udo Ekpo Ikpa surrendered eight pieces of his land to Udo Udo Akpaetim, who exercised maximum acts of ownership. On his death, the plaintiff’s father inherited the land and erected a house on a portion, and the land in dispute is part of the land, on which the plaintiff also erected his own building. The defendant sometime in April 1992 broke and entered the land without the consent of the plaintiff and started constructing a building thereon, and in the process destroyed some economic trees on the land.

The case of the defendant is that the land in dispute originally belonged to Obot Bassey Udoh of Aduak family, and Obot Bassey Udoh conveyed the piece of land to him by a conveyance dated 14th March 1978. According to the defendant, the house purportedly built by the plaintiff was not built by him, but his brothers for their mother, and it is situated outside the land in dispute. The defendant denied that he ever entered into a land belonging to the plaintiff and did not destroy any economic crop or roof of the plaintiff’s house.

After the exchange of pleadings parties adduced evidence, which was appraised by the learned trial judge who dismissed the plaintiff’s claims thus:-

“….I find that the plaintiff has not discharged the burden of proof to make for a finding in his favour.”

Aggrieved by the decision the plaintiff appealed to the court of Appeal. The Court of Appeal found no substance and merit in the appeal, so it dismissed the appeal. Aggrieved, again by the judgment the plaintiff has appealed to this court originally on two grounds of appeal, which were increased to seven grounds of appeal with the leave of this court. In compliance with the rules of the court both parties exchanged briefs of argument to wit a reply brief was also filed by the learned counsel for the appellant. The briefs were adopted by the learned counsel for the parties at the hearing of the appeal. The following issues for determination were raised in the appellant’s brief of argument:-

“1. whether the court of Appeal was right in confirming the dismissal of the appellant’s case on the ground that the custom by which the land in dispute was acquired by Udo Udo Akpaetim from Udo Ekpo Ikpa, the man who first deforested the land, was not proved by the appellant in accordance with the law.

2. Whether the court of Appeal was right in confirming the dismissal of the plaintiff’s case as to who first deforested or settled on the land in dispute without the resolution of important issues in the case of the parties, by adoption of the principle distilled in MOGAJI VS. ODOFIN.
3. Whether the Court of Appeal was right in using evidence held as going to no issue, as evidence of contradiction of the evidence of P.W.2.
4. Whether the court of Appeal was right in using evidence held as going to no issue, as evidence of contradiction of the evidence of P.W.2.
5. Whether the appellant has discharged the onus of proof on him, to be entitled to the declaration sought.
6. Whether the lower Court was right in confirming the dismissal of the appellants, claims in its entirety.
7. Whether the court of Appeal was right in holding, in spite of conflicting evidence of the parties on Traditional History of the land in dispute, that the principle in KODJO vs. BONSIE did not apply to the consideration of the case.”

The Respondent’s sole issue for determination is:-

“Whether From The Totality Of The Evidence Before The Trial court, The court of Appeal Was Right In Affirming The Judgment of The Trial court Dismissing The Appellant’s claim In It’s Entirety”.