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SUIT NO. SC 375/1974










Mr. O. I. Orok – for Appellant

Chief E. E. Awan – for Respondents



[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]



Civil Action – Damages – Trespass and injunction – 250 acres of land granted

under Native Law and Custom of Izundu.



SOWEMIMO, J.S.C. (Delivering the Judgment of the Court):

This is an appeal against the judgment of the High Court of South-Eastern State delivered at Calabar on 27th September 1972. The Plaintiff’s writ was issued against the 1st defendant but in the course of the proceedings the 2nd, 3rd and 4th defendants were joined as representatives of the Idundun people with descriptive title of Ntoe of Idundun. The 3rd and 4th defendants are family heads and elders of the Idundun Community. They were joined because they leased the property to the 1st defendant.


This case is suit No. C/33/1969 tried at Calabar and the Plaintiff’s claims for damages for trespass and injunction were dismissed. The writ of summons reads:

Statement of Claim

“1.     The defendant by himself, his servants and/or agents between the months of July and August, 1969 broke and entered certain land of the Plaintiff at Canaan Oqua Otop in Calabar, destroyed Plaintiff’s economic trees, his farms and other farms of his tenants, cleared a portion of the said land for building and planted palm seedlings on part of the land.

  1. The Plaintiff has suffered damages and claims:

(1)     Damages limited to £5,000 (five thousand pounds).

(2)     An injunction to restrain the defendant by himself, by his servants or agents or otherwise, from continuing or repeating any of the acts complained of or at all.”


The relevant portions of the pleadings on which either party fought the case read:-

“1.     The plaintiff is of the Qua tribe in Calabar Division and is a grandson of Awo Okang who was a royal daughter of the Namburi ruling family in Idundun.

  1. Idundun is one of the Qua Towns in Calabar and lies East of the Qua river. Idundun has two ruling families the Namburi family from where the Plaintiff comes and the Isongo Iseri family.
  2. Plaintiff is a fisherman and farmer and about 36 years ago, during one of his fishing trips discovered that there was plenty of fish around the area now known as Canaan Qua Otop.
  3. Plaintiff decided to settle on Canaan Qua Otop then a virgin bush and ap-proached the Ntoe (head chief) of Idundun who was then Ntoe Edim Ita. Ntoe Edim Ita granted the said land to the Plaintiff who made customary pay ments to the Ntoe and Chiefs of Idundun. Plaintiff also gave customary drinks.
  4. The land known as Canaan Oqua Otop is shown verged pink on Plan No. ISH.757 dated 26th February, 1970 prepared by Mr. E. Ekpenyong licensed Surveyor and attached to this Statement of Claim.
  5. The boundary of the said land was shown to the Plaintiff by a leading Chief of Idundun the late Namburi Mboto on the instruction of the Chiefs and people of Idundun. Plaintiff has boundary with Obarekai on the north-east, Esit Ikot Inameti on the East, Ikot Edem Itu on the South, Esin Ufot on the South- east and Sabanka and Ikpa Idundun on the West and North.
  6. The name Canaan Oqua Otop was given to the land by the plaintiff who named it after himself and this name is found in the official map of Calabar Division with its identity separate and distinct from Idundun.
  7. According to Qua Native Laws and Customs a son who develops a virgin bush stands possessed of the said bush for all purposes subject only to the ultimate reversionary rights of the original town such as the case with Canaan Oqua Otop which is in the possession of the plaintiff subject only to the reversionary rights of Idundun town which reversion can only take place when the line of the Plaintiff ceases, or is extinct.
  8. The Plaintiff developed and built up the said land into a village which now houses many tenants of the plaintiff. These tenants of the plaintiff are still on the land and their houses are shown on the plan No. ISH.757 aforementioned.
  9. Plaintiff has planted a number of economic trees like rails wine palm trees, banana, plantain, palm trees, kolanut trees, orange and pear trees. Plain-tiff also plants seasonal crops and leases out portions of the land for planting purpose to his tenants. Plaintiff has been in undisturbed possession since about 1934 until the defendant went on the land which is the subject matter of this action.
  10. Between the months of July and August, 1969 the Defendant by himself, by his servants and agents broke and entered the area verged Yellow on the Plan attached to this Statement of Claim and demarcated 53.97 acres for himself, cut down and destroyed several economic trees, of the defendant including banana trees, plantain trees, palm trees, and kolanut trees. Defendant also destroyed plaintiff’s farms and those of plaintiff’s tenants. The area verged Yellow destroyed by defendant (cause of action) was fully cultivated by plaintiff and his tenants and there are buildings of plaintiff’s ten-ants on the land in dispute.
  11. The area verged yellow on plan No. ISH.757 aforesaid is the land in dispute.
  12. Plaintiff’s village known as Canaan Oqua Otop of which the land in dispute forms part is recognised by Idundun as a separate village.
  13. The defendant intends to continue the said trespass unless restrained.
  14. The Plaintiff has suffered damages and claims as follows:-

(1)     Damages limited to £5,000 (five thousand pounds).

(2)     An injunction to restrain the defendant by himself, by his servants or agents or otherwise, from continuing or repeating any of the acts complained of or at all.”


Statement of Defence

“3 (a) In the said IDUNDUN VILLAGE COMMUNITY (Kwa) there have always from time immemorial been recognised two traditional ROYAL FAMILIES, namely:-


There does not exist and/or has never existed at any time in the IDUNDUN VILLAGE COMMUNITY (Kwa) aforesaid any Isogo Iseri as a family as stated in Para. 2 of the STATEMENT OF CLAIM or by way of any other identity, or at all.

(b)     The PLAINTIFF does not hail from the Namburi Family in IDUNDUN VILLAGE (Kwa) aforesaid (as stated in Para. 2 of the STATEMENT OF CLAIM) of which the 2nd defendants is the current head.

(c)     It is admitted that the Plaintiff is of Kwa Stock but is a member (native) of Okim Family in Big Kwa Town and is only a tenant of, and a settler in, IDUNDUN VILLAGE (Kwa) aforesaid.

  1. It is not denied that the Plaintiff is both a Fisherman and a Farmer.
  2. It was only in or about 1939 that the PLAINTIFF upon his request was granted a small plot of land in the IDUNDUN COMMUNAL LAND. The Area of the Land so granted to him is a small piece or portion of the land popularly known as and or called ESIN MFOK No. 2 and the extent of the GRANT to him was prescribed at the time – it is shown verged purple in the PLAN NO ISH.749 by Mr. E. Ekpenyong, Licensed Surveyor, dated 24th January, 1970. It was after the said Grant that he, the Plaintiff renamed it (the Area of the GRANT to him) Canaan Oqua Otop (after himself). The grant to him was during the Headship of, and by the then Acting Ntoe OROK ABASI OQUA who then deputised Chief NAMBURI OKON SAKO (now Deceased) and Chief (as he then was) KPARIKA OKORO KPARIKA (now Ntoe, and the 1st of the 2nd DEFENDANTS herein) to locate the plot of land covered by the Grant to the PLAINTIFF, and not by Ntoe EDIM ITA (who had died before the said Grant to him) as stated in Para. 4 of the STATEMENT OF CLAIM and the Late NAMBURI MBOTO as alleged in Para. 6 of the STATEMENT OF CLAIM who was not a contemporary of the said Ntoe Edim Ita, (At the trial it will further be maintained that the said now late NAMBURI MBOTO ‘was in fact the GREAT-GRAND-FATHER of the said Ntoe EDIM ITA). The Grant was for a consideration of an annual payment tribute of some measure/quantity of fish to the NTOE and the PEOPLE OF THE IDUNDUN VILLAGE (Kwa), the REAL 2ND DEFENDANTS in the above suit, in acknowledgement/recognition of their overlordship of the LOCUS IN QUO- the said tribute was regularly paid until 1966. In February, 1969 a penalty of a she-goat and five (5) bottles of gin was exacted by the Idundun over-lords and paid by the PLAINTIFF for the years he had been in default in the acknowledgement of the 2ND DEFENDANT’S over-lordship over him in respect of the LOCUS IN QUO. The Grant to the PLAINTIFF was a personal one for seasonal and personal occupation and/or use only, and not otherwise.

(6) (a) The piece or Parcel of Land verged yellow in the PLAINTIFF’S PLAN NO ISH.757 by Mr. E. Ekpenyong, Licensed Surveyor, dated 20th February, 1970 area 53.97 acres referred to in Para. 11 of the STATEMENT OF CLAIM is a piece or parcel of the Asamanka Land of IDUNDUN VILLAGE communal LAND. It was allotted to the 1st DEFENDANT by the 2nd DEFENDANTS in or about 1969 for valuable consideration since when the 1st DEFENDANT entered upon and took possession of the same and then put in under cultivation. The said piece or parcel of land was never cultivated before by the PLAINTIFF or any one else – it was never at any time in the possession and/or use of the PLAINTIFF even by way of trespass or ever at all.

(b)     It was rather the PLAINTIFF who entered upon the said piece or parcel of Land after it had been put under cultivation by the 1st DEFENDANT, destroyed the crops planted thereon by the 1st Defendant. The 1ST DEFENDANT then reported the matter to the Police here in Calabar, who after investigation prosecuted the matter against the PLAINTIFF in the Chief Magistrate’s Court, Calabar. The above action is a sequel by the PLAINTIFF to the said criminal proceedings.”


The learned trial Judge exhaustively reviewed the evidence of both parties and properly evaluated it. He came to three significant findings of fact which were not challenged before us:

(a)     that the plaintiff is not an Idundun citizen but that of Oqua Town;

(b)     that he was nowhere related to any of the two families in Idundun from where Ntoes are selected;

(c)     that the plaintiff was only granted a portion of land for himself and his family and was not entitled to allocate or lease out any landed properties of the Idundun people.


The learned trial Judge expatiating on these findings in his judgment stated inter alia as follows:

“I have come to the conclusion that the plaintiff may have been remotely connected with the Town of Idundun but, he is essentially a Big Qua Town man. As such, he was not a native of Idundun and has no natural rights of a native of that place. Idundun is one of the Qua clan settlement separate and distinct from the Big Qua clan settlement. He was a fisherman in his more youthful days and particularly pushful. Most of his fishing activities was done on the flooded swamp of Idundun land since his own Town lies many miles from the nearest swamp. It is true that sometime ago he had come across an area near the swamp which he thought he could settle and carry on his fishing for a longer period before returning home with his catch. He did recognise that he was on Idundun land and both sides to this action have agreed that he approached the then Ntoe or head of the Idundun people and asked to be given a place to settle. Why did the plaintiff do this and what sort of settlement was he intending? It would be remembered that the plaintiff was fishing in the swamp of the Idundun people and may be collecting things from that swamp without any permission from the Idundun people.”

“This particular grant was a native grant for the settlement of a family which was not more than a man and his wife or wives and children as distinct from a man as a head of a village, clan or a labouring gang. Therefore the need for such a permanent demarcation did not arise. There was no danger to the owner-ship of the land nor was there any suspicion of such a threat considering that the person was a member of the Qua clan himself. ff there were definite boundaries 1 have no doubt that there would have been boundary trees planted to indicate these at the time.

“I accept the fact that the site was where the plaintiff’s house, now near the swamp stands but that was the commencing spot for the allocation and never its end. The plaintiff took the people to where he might have had a fishing but near the edge of the swamp. From there it is my opinion that it was indicated by a show of hand inward towards the dry land by the people to him to clear as much as he wanted and could clear for himself and his family.”

‘The plaintiff was no less conscious of this and therefore what was the name of a small village which he found, he gave to a wide area of land which he had surreptitiously leased to mostly people from the mainland of the State who are in no position to understand or care about the land tenure of this place until they find themselves in trouble. Thus “Canaan Oqua Otop” became the name of a wide area of land of about at least 250 acres as shown by the plaintiff’s plan Exhibit 1 instead of a little village. As I said earlier, the plaintiff was not a community, or a group of families or an organisation or a member of another tribe capable of perpetual existence to warrant the land owners taking the pre-caution to tie him down to a particular boundary as would have been the case if he were any of these. That of course did not give the plaintiff the right to take the whole land or behave as an absolute owner or dispossess the owners of rights to the land as a whole. It is therefore impossible for me to accept the plaintiff’s contention that the whole of the land in Exhibit 1 was the portion granted by the defendant’s people to him. Whatever the length of time he has continued to use this land, unless he could show that he had remained there adverse to the rights of the defendants without their interference or complaint, he cannot claim to have any title to it or maintain an action for trespass against the owners who are taking definite step to assert their proprietary right.”

..”All that the plaintiff has succeeded in doing in this case is that he has shown that on that land he could not be treated as a trespasser. But having failed to satisfy this Court that he had absolute grant to the whole of the area in Exhibit 1 or to an area which boundaries are well defined, I hold that he has failed to prove his title to this land which he put in issue in his Statement of Claim. Even though the defendants will not be right to do anything which would oust the plaintiff from the Idundun land considering the length of time he has been on this land, the plaintiff cannot challenge their title to that land.” (Italics ours)

When the appeal came before this court, Mr. Orok abandoned grounds 3, 4, 6 and 8 and these were accordingly struck out. He then argued grounds 1, 2 and 8 and submitted that although radical title is in the Idundun community he argued that the appellant, being immigrant, should be treated as a customary tenant. He did not argue the other grounds and they must be deemed to have been abandoned as well. Chief Awan in reply stated that once the plaintiff has challenged the ownership of the whole land as being that of the Idundun then he must establish that he is the owner and should he fail then his claims should be dismissed. It was established in evidence and was found proved by the learned trial judge, that the area in dispute was the portion edged ‘yellow’ which the 2nd, 3rd and 4th defendants as representatives of Idundun people had leased out to the 1st defend-ant. The defendants being owners were held to have properly leased it. The Plaintiff has no right to complain.

Once the plaintiff has failed to prove that a grant of 250 acres of land was made to him, of which the yellow portion is a part, and since the learned trial Judge had found as a fact that the 1st defendant did not destroy any crops on the land, then of course the plaintiff’s claim must fail. On the triable issues raised in the pleadings, the plaintiff had failed to establish that he is an Idundun citizen, a member of a ruling house, or that he was entitled under Native Law and Custom to the large area of land claimed by him. We are in complete agreement with the learned trial Judge on the findings.

Learned counsel for the appellant having failed to make out any arguable case for the plaintiff requested this court to allow plaintiff to stay in the portion of land where he has his building. It is not open to this court to give judgment for the portion of land which was not specifically claimed and on a ground which the plain-tiff himself did not rely upon in the lower court.

In the circumstances the appeal fails and is hereby dismissed. The judgment of the learned trial Judge in Suit C/33/1969 with the award of costs is hereby confirmed. The appellant will pay to the respondents N260 as costs.

Appeal dismissed.


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