Chief Eyo Uma & Ors V. Engr. Ekpenyong Okon Effiom & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A.: (Delivering The Leading Judgment)

This is an appeal against the Ruling of the High Court of Cross River State sitting at Calabar, delivered on 5th April, 2011.

The 1st – 3rd Respondents, as plaintiffs, commenced suit No.HC/134/2009 by way of writ of summons. Their statement of claim and statements on oath of witnesses were filed alongside on 15/4/2001. The 1st – 3rd Respondents also filed a motion for interlocutory injunction on 17/4/2009. The 1st – 3rd Respondents in their statement of claim of page 6 of the Record of Appeal had sought the following reliefs:

14. Wherefore the Claimants claim against the Defendants jointly and severally as follows:
15. N5,000,000.00 as general damages for trespass.
16. An order of perpetual injunction restraining the defendants, their agent and privies from further trespassing, building, removing of latrite (sic), on the land subject of a lease made in favour of the Claimants’ late father, situate at Esuk Ekpo, Eyo, Akpabuyo described in plan No. RIM/12391 showing an area of 24,282 hectres and plan No. ZAP/1044.
17. A Declaration that the Claimant as children of late Chief Effiom Okon Effiom are entitled to the continue (sic) use, occupation and possession of the said land until the expiration of the subsisting lease till the year 28th day of February 2086 and are the proper persons to sublet or lease the residue of their interest as per the terms of the lease.
18. Account of monies received.

In the motion on notice filed on 17/4/2009, of page 35 of the Record of Appeal, the 1st – 3rd Respondents sought the following Orders:

(1). An Order of interlocutory injunction restraining the defendants, their agents and privies from further trespassing, removing laterite, selling or leasing, building or doing anything whatsoever on the plaintiffs land situate at Esuk Ekpo Eyo, Atimbo Akpabuyo delineated in plan No.ZAP/1044 and RIM/12391 pending the determination of this Suit..

(2). Any other order(s) as the Court may deem fit to make in the circumstances of this case.

The motion on notice was argued on 28/2/2011, and, adjourned for reply on points of law by the Appellants’ Counsel, the Appellants having failed to file a counter affidavit. The Appellants, as 3rd – 5th defendants, who later contended that they were not served with the motion, filed a counter affidavit to the motion on 14/3/2011 and accompanied same with written address, which was adopted on 14/3/2011. The matter was then adjourned for Ruling. The trial court in its Ruling delivered on 5/4/2011 stated:

“On the 28/2/2011, O. A. Bassey Esq. for the Applicants moved the motion by adopting his written argument while Eyo Asuquo Esq. for 3rd – 5th Defendants/Respondents asked for date to reply on points of law having not filed a counter affidavit as at that date and case was adjourned for that purpose to 14/3/2011.

But on the said date, U. E Eba, Esq. appearing for 3rd – 5th Respondents, told Court that his clients have filed a counter affidavit, and address that Respondents were not served the Motion but were served only a Writ of Summons. He adopted the address filed along with the counter affidavit.

However, O. A. Bassey, Esq. urged the Court to discountenance the counter affidavit as same was filed out of time. I have found in the Courts file of affidavits of service showing that 3rd – 5th Respondents were served all the originating processes including the motion on Notice and supporting affidavit on 29/4/2009 and 30/9/2009.

Therefore Respondents (sic) learned counsel (sic) contention that they were only served a writ of summons is without foundation. The question then is whether in law, Respondents can file a counter affidavit in opposition to a Motion that had been already argued in Chief on 28/2/2011. The counter affidavit was filed on 14/3/2011. The answer in my view is in the negative. See the case of BILL CONSTRUCTION LIMITED V. IMANI LTD. (2007) 3 MJSC 217 at 219 4 – 3.

What this means is that 3rd – 5th Respondents counter affidavit and the address is worthless in law and is accordingly struck out.”

The learned trial Judge then ordered as follows:

1. An Order of interlocutory injunction is hereby granted restraining the defendants, their servants, agents or privies from further trespassing, removing laterite, selling or leasing, building or doing anything whatsoever on the disputed land situate at Esuk Ekpo Eyo Atimbo, Akpabuyo, delineated in Plan No. ZAP/1044 and RIM/12391 pending the determination of this Suit.
2. The applicants are ordered to file undertaking as to damages payable to the defendants/respondents should it turn out at the end of the trial, this Order ought not to have been made.

See page 115-116 of the Record of Appeal.