Chief Essien Bassey Essien & Ors V. Felix Okon Edet & Ors (2003)

LawGlobal-Hub Lead Judgment Report

SIMEON OSUJI EKPE, J.C.A. 

This is an appeal from the judgment of Umoren, J. (as he then was) in suit No. HU/30/80, filed at the High Court, Uyo in Akwa Ibom State and delivered on the 20th of January, 1997 at Ikot Ekpene High Court of the same State.

The plaintiffs in a representative capacity had sued the original defendants on record and claimed jointly and severally the following reliefs in the writ of summons:

“(1) N50,000.00 (fifty thousand Naira) being special and general damages for trespass.

(2) A perpetual injunction restraining the defendants, their agents and assigns from committing further acts of trespass on the said land belonging to the plaintiffs”.

Pleadings were ordered and later filed and exchanged after both parties who were out of time to file the same with their survey plans had obtained from the court below extension of time to do so. In paragraph 25 of the statement of claim, the plaintiffs claimed the following reliefs:

“Wherefore, the plaintiffs claim against the defendants as follows:

(a) A declaration that the plaintiffs are entitled to the customary or statutory certificate of occupancy over the land in dispute.

(b) N50,000.00 being general damages for trespass.

(c) A perpetual injunction restraining the defendants, their agents and assigns from committing further acts of trespass on the land in dispute”.

The defendants filed their statement of defence and counter-claim. In paragraph 22 thereof the defendants counter-claimed for (1) a declaration of title to the customary right of occupancy over the two parcels of the land in dispute with a survey plan No. RIM/10420 (LD) dated 14/3/85, (2) N100,000.00 (One hundred thousand Naira) being general damages for trespass, (3) forfeiture of the lands verged yellow and green in the plaintiffs’ plan granted to the plaintiffs under native law and custom, (4) perpetual injunction.

In the trial that followed, the plaintiffs called three witnesses and tendered their survey plan No. AQ 26/83 (LD) dated 13/6/83, through PW1 without objection as exhibit ‘A’ and closed their case. After the close of the case for the plaintiffs, the defendants opened their defence and called two witnesses. The second defence witness (DW2) was still giving evidence-in-chief when the defendants filed a motion for amendment of the statement of defence and the counter-claim. At that juncture, the learned trial Judge was transferred to Ikot Ekpene Judicial Division and the hearing of the case suffered a temporary set back.

After the learned State Chief Judge had granted the learned trial Judge an extension of jurisdiction to continue with the case at Ikot Ekpene High Court, the case was resumed before Umoren, J., the trial Judge, at Ikot Ekpene High Court on 1/7/96. The record of proceedings of that day’s hearing at pages 181 to 182 shows that some of the plaintiffs with their counsel were present, while the defendants and their counsel were absent. Dr. A. Essien of counsel for the defendants wrote for an adjournment. The learned counsel for the plaintiffs stoutly opposed the application for adjournment and urged the trial Judge to consider the case of the defendants as abandoned and closed and to allow him a short date to address the court. The learned trial Judge in acceding to the submission of the plaintiffs’ counsel, had this to say at page 182 of the record of appeal:

“I accept the view of the learned plaintiffs’ counsel that the defendants have abandoned the case. I do not think I have any choice other than to terminate the matter at this stage on the merits. But before I do so, I shall allow the learned counsel for the plaintiffs to address me.