Mr Osok Aneji & Ors V. Sylvester Ikwo Odwong (2016)

LawGlobal-Hub Lead Judgment Report

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

This is in respect of an appeal against the judgment of the High Court of Cross River State sitting at Obubra Judicial Division delivered by KOOFFREH J. on the 17th February,2014.

The parties belonged to neighboring villages and had a dispute over a piece of land resulting in the respondent taking out a writ of summons against the appellants who were then four inclusive of the then 1st defendant who unfortunately died in the course of the proceedings. The reliefs sought by the respondent/claimant were as follows:
”1. An Order declaring that the plaintiff is entitled to the Statutory Right of Occupancy over all that parcel of land situate, being and lying in between the Government Primary School, Owakande 11, Obubra and the former pineapple farm along Obubra-Apiapum Road in Ogada, Obubra Local Government Area within the jurisdiction of this honourable Court.
2. An Order of mandatory injunction compelling the defendants to remove and uproot all economic trees planted on the plaintiff?s land by the defendants, their agents, members, privies, assigns etc.
?3. An Order of

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perpetual injunction restraining the defendants, their agents, staff, members, assigns, servants, privies etc. from entering, encroaching or in any manner trespassing into the plaintiff’s parcel of land situate, being and lying in between the Government Primary School,Owokande 11, Obubra and the former pineapple farm along the Obubra-Apiapum Road in Ogada, Obubra Local Government Area within the jurisdiction of this honourable Court.
4. Damages totally assessed at six million, one hundred and twenty thousand naira (N6,120,000.00) only claimed viz:
(i) Special damages amounting to one million, one hundred and twenty thousand naira (1,120, 000.00) only.
PARTICULARS OF SPECIAL DAMAGES
(I) Six hundred thousand naira (N600,00.00) only being value of the yam farm on the said land which yams were harvested and taken away by the defendants.
(II) Four hundred thousand naira (N400,000.00) only being value of the plaintiff?s cassava farm on the land which worth of cassava tubers the defendants harvested and took away.
(III) Twenty thousand naira (N20,000.00) being value of the plaintiff?s maize on the land which worth of

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maize was harvested and taken away by the defendants.
(IV) One hundred thousand naira (N100,000.00) only being value of fifty (50) palm trees on the land destroyed by the defendants.
5. General damages of five million naira (N5,000,000) only for defendants brazen acts of trespass into the plaintiff?s property situate, being and lying in between the Government Primary School, Owakande 11, Obubra and the former pineapple farm along Obubra-Apiapum Road in Ogada, Obubra Local Government Area within the  jurisdiction of this honourable Court.

On being served with the originating processes, the defendants filed a joint statement of defence which elicited a reply from the plaintiff. Parties having joined issues, the case proceeded to trial at which 2 witnesses testified for the respondent/claimant while 4 witnesses testified for the appellants/defendants. In a considered judgment delivered as aforesaid on the 17th February, 2014, the learned trial Judge found in favour of the respondent/claimant and granted his reliefs.
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Dissatisfied, the appellants filed a notice of appeal on the 7th April, 2014 containing 3 grounds. The said notice of

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appeal was subsequently amended via an amended notice of appeal filed on the 27th May, 2015 but deemed properly filed and served on the 28th April, 2016 this time containing 5 grounds.

At the hearing of the appeal, Mr. Okare the learned counsel for the respondents drew attention to the preliminary objection argued in the respondent’s brief filed on the 26th May, 2015 but deemed properly filed and served on the 28th April, 2016. He adopted the arguments in respect of the said preliminary objection contained therein, abandoned the second leg of the objection and urged the Court to strike out the appeal.

Mr. Okoro, the learned counsel for the appellants adopted the appellants brief filed on the 27th May, 2015 but deemed properly filed and served on the 28th April, 2016 as well as the appellants’ reply brief filed 3rd November, 2015 but deemed properly filed and served also on the 28th April, 2016 as the arguments of the appellants in furtherance of their appeal. He pointed out that the response to the preliminary objection is contained in the reply brief and urged the Court to dismiss the said preliminary objection and allow the appeal.

?In respect

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