Atipioko Ekpan & Anor. V. Chief Agunu Uyo & Ors. (1986)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

The main issue raised for determination in this appeal is as to the absence of any locus standi in the plaintiffs’/respondents’ to institute the proceedings in respect of which the judgment delivered in the High Court led in the first instance, to the appeal to the Court of Appeal, and now, in the second instance, a further appeal to this Court from the judgment of the Court of Appeal.

The claim before the High Court of Bendel State, Sapele, was a simple claim of damages for trespass and an order of perpetual injunction. More particularly, the endorsement on the writ of summons reads:

“The plaintiffs claim from the defendants jointly and severally as follows:

(a) N200.00 damages for trespass as a result of the defendants’ entry in February and March, 1975 into the plaintiffs’ land at Okweka village in Jesse clan within the Sapele Judicial Division to plant food and economic crops without the consent of the plaintiff. This land has been in the exclusive possession of the plaintiffs for centuries on end.

(b) An order of perpetual injunction to restrain the defendants and their agents from further acts of trespass on the land.”

(Italics mine)

But the pleading in the statement of claim complains of different acts of trespass as is disclosed in paragraphs 9, 10 and 12 of the amended statement of claim dated 15th day of December, 1978 which read;:

“9. The 2nd defendant came to the land for the first time in 1974 as a result of a marriage consideration between the 2nd defendant and 1 miroro, a daughter of Are who is a descendant of Arigbe of the plaintiffs’ family. Momo came in 1974 to ask for a small piece of land which the plaintiffs allowed him to plant cassava and yams only for that year because of his wife. The next year that is 1975 the plaintiffs refused to renew his request as the land was not enough for their own children. It was then Momo and his father, Atipioko, broke into the land to disturb plaintiffs and their tenants and started to lay claim to the farmland as belonging to him.

10. Sometime in 1975 the defendants entered the land to disturb the plaintiffs’ tenants Ezebue Ukavwe who is a son in law to the 2nd plaintiff, Anderson Ujobo/Odo. The defendants also uprooted cassava and yams planted in the same area surrounding the “Ezenoha” pond edged pink in the plaintiffs’ plan. The defendants entered the plaintiffs’ said farmland without the consent, knowledge and approval of the plaintiffs’ family.
11. The defendants have never before 1975 farmed anywhere on the plaintiffs’ land edged pink in the plaintiffs’ plan M/G 1685/75 prepared by the plaintiffs’ surveyor Me. G. A. Obianwu in suit No. S/23/75 between the same parties which was struck out on 29/11/76 because the plaintiffs did not appear in court on the date on which the case was fixed for mention:’

(Italics mine)

The facts pleaded in paragraph 12 are, in my view, not reconcilable but in direct contradiction to the facts pleaded in paragraph 9 of the statement of claim.

The area of land in dispute called Ezenoha is described in paragraphs 7 and 8 of the statement of claim “which read in part:

“7. The area edged pink in the plan which is the cause of the dispute in this suit is a pond called Ezenoha dug by Agbani Enadeji shown in the plan. Agbani Enadeji is a member of the plaintiffs’ family and he used Ezenoha as a fish pond. After Agbani’s death, his children have been using this large fish pond till today. The cotton tree at the edge of the pond was planted by Agbani Madojo.

8. The land in dispute has boundaries with Ugbovwe people’s land, Jesse – Igbinoba Road and Benin people’s land on the north. The land on the other side of the road is farmed by plaintiffs and Mossoger people.”

(Italics mine)