Barrister Aniekan Ukpanah V. Surveyor Asuquo Ayaya (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JEAN OMOKRI, J.C.A:(Delivering the Leading Judgment)

This is an appeal against the judgment of Justice E.E. Ita, of the Cross River State High Court sitting in Calabar, in Suit No. HC/302/2005 delivered on 13/8/2008.

The appellant in this appeal acquired a piece and parcel of land in 1973 from late Ndidem Edim Imona, the Ntoe of Big Qua on behalf of Big Qua Town Calabar. The lease agreement, duly executed by the parties, was tendered and admitted in the trial court as Exhibit A. The land was fenced round and a gate was put there to ensure that intruders did not enter the land. Sometimes in 2003, a counsel acting for the Big Qua Town wrote a letter terminating the lease. The letter is exhibit E. Sometimes in March, 2005, the respondent was retained by the Big Qua Community to carry out a survey of the land, which he did. After surveying the land he was paid off by the Big Qua Community on 13/5/2005.

Subsequently, the appellant’s solicitor wrote a letter with Reference No. GAU/MSC/2005/109 to the respondent complaining about the trespass and demanded the sum of N10 million as damages. That letter is exhibit G. The appellant also wrote to the Ndidem of the Big Qua Town Community since, the land is within their domain. The letter with Ref. No. CAU/MSC/2005/108 dated 13/5/2005, is exhibit H. Not having received any response from either the respondent or the Ndidem of the Big Qua Town Community, the appellant on 21/7/2005 instituted proceedings against the respondent at the trial Court. In both the Writ of Summons and Statement of claim, the appellant claimed as follows:

1. A declaration that the plaintiff is entitled to the statutory right of occupancy covering the land situate along Old Ikang Road, Big Qua Town and lying on the opposite side of the Road to Otop Otop Orphanage and bounded by Ediba Road, Calabar Municipality which is particularly delineated by Plan No. IN/2570, and registered in Lands Registry, Calabar as No. 6 at Page 6 in volume 47.

2. N10 million damages for trespass on the said land by the defendant.

3. A perpetual injunction restraining the defendant, by himself, his servants, agents or privies from further entering, encroaching, surveying and/or carrying out any other act(s) of trespass on the plaintiff’s land.

Before the court below, the appellant testified for himself in support of his claim but called no other witness. Similarly the respondent testified on his own behalf for defence without calling any other witness. At the conclusion of the hearing of the evidence adduced by the parties and after reviewing the addresses of learned counsel for the parties, the learned trial judge dismissed the claim of the appellant on the ground that the respondent being an agent of a disclosed principal, Big Qua community, incurs no liability for the alleged trespass.

Apparently dissatisfied with the judgment of the court below, the appellant appealed on 19/9/2008 to this court on five grounds. See the notice and grounds of appeal at pages 64-68 of the record.

In his brief dated 4/5/2009 and filed on 5/5/2009, the appellant identified 5 issues for determination from the 5 grounds of appeal filed and they are:

1. Whether the appellant proved his case before the court and whether he was not entitled to judgment.

2. Whether the Respondent had disclosed his suable principal who engaged him to survey the appellant’s land and whether the non-joinder of the alleged principal was fatal to the appellant’s case so as to be denied judgment in the case against the Respondent.

3. Whether a case of trespass was made out against the Respondent and was it proper for the court to refuse to give judgment to the appellant for the trespass on his land.

4. Whether it was correct for the trial court to hold that a court has no jurisdiction where there is no dispute between the parties before it and therefore declining to pronounce on reliefs No. 1 and 3 which is a claim for title and injunction when Respondent averred that the land had been “reposed” which means “reposed” or regained or “taken over” from the plaintiff now appellant thus establishing a dispute.