Mr. Ido William Utong & Ors V. Edet Archibong Utong & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR J.C.A. (Delivering the Leading Judgment)

The Respondents were the plaintiffs before the High Court of Justice, Okobo, Akwa Ibom State. They instituted this suit on 22nd day of February, 2008 and sought the following reliefs against the appellants/defendants:

“19. By the said acts of trespass by the defendants above described the plaintiffs have suffered damage and claim against the defendants jointly and severally as follows:

(a) A declaration that the plaintiffs are entitled to a statutory right of occupancy to all that piece or parcel of land known as ETI AFIE No. 2 situate, lying and being at Nung Atai Odobo Village in Okobo Local Government Area and which is bounded on the first side by the lands of Uduak Joshua and Edet Effiong Esio and on the second side by the land of Etim Edoho and on the third side by the lands of Joe Ononokpono, Afahaene John Efie and Ndueso Effiong Bassey and on the fourth side by the land of Edem Ama.

(b) The sum of N5, 000,000.00 Five Million Naira) being general damages for the trespass committed by the defendants.

(c) An order of perpetual injunction restraining the defendants by themselves, servants and/or agents from committing further acts of trespass thereon.”

The appellants/defendants filed a counter claim/an Amended Statement of Defence and sought the following remedies against the Respondents:

“1. By way of counter claim the 1st and 2nd defendants hereby repeat all the paragraphs on the statement of claim.

2. Whereof the 1st and 2nd defendants claim as follows:

“(a) A declaration that the 1st and 2nd defendants are entitled to the customary right of occupancy over the land comprising 18 parcels known as Etiafie No.2 lying and situate at Nung Atai Odobo village in Okobo Local Government Area.

b) Perpetual injunction to restrain the plaintiff by themselves, their servants, agents, privies and assigns from interfering with the 1st and 2nd defendants’ right to the lands now disputed by the plaintiffs.

(c) N5 Five Million Naira being general damages for trespass.”

Lordship dismissed the counter-claim hence this appeal. Being aggrieved with this judgment the appellants filed a Notice of Appeal with two original grounds of appeal on 6th August, 2010. Four additional grounds were with leave of this Court filed on 4th November, 2010. The learned Counsel to the appellants distilled six issues for determination in their joint Brief of Argument filed on 15th November, 2011. The Respondents also identified a lone issue for determination in the brief filed on 21st December 2011. Before I consider the issues raised for determination may I recapitulate the facts that led to the institution of the suit in the Lower Court now subject matter of this appeal.

The Respondents/plaintiffs’ case before the lower Court was that they and the appellants have the same great grandfather by name Utong Uyoape Enang. The children of Utong Uyoape Enang all died leaving William Utong Uyoape the father of 1st-2nd appellant. William Utong Uyoape was alive he redeemed the family land for the sum of N6,200.00. He requested that if the Respondents refunded part of that sum he will share or partition the family land with them, they being the children of his late brother by name Archibong Utong Uyoape (deceased). The Respondents pleaded that they did so on 20th September, 1996, as evidenced in Exhibit “A”.

After refund, a dispute arose in the course of sharing or partitioning the family property. William Utong Uyoape, the father of the 1st and 2nd appellants suggested, and they agreed, that the dispute should be submitted to elders in their village for adjudication. This was done. The Customary Arbitrators partitioned the family land and they went into immediate possession of the land, planted palm trees and cassava since the year 2000. The evidence of the partition is Exhibit “B”. However when William Utong Uyoape died sometimes in 2005, the 1st and 2nd appellants committed acts of trespass into the land partitioned in their favour by the Customary Arbitrators. This they did so by leasing to the 3rd-6th appellants. When the leasing was opposed by the Respondents, the 1st – 2nd appellants threatened to kill them hence the institution of the suit in the lower Court.