Buae Enterprises Limited V. Chief Sunday Eyo Okon Obong (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment)

The Respondent, as Claimant in the Uyo Judicial Division of the Akwa Ibom State High Court, instituted a suit against the Appellant as Defendant for the declaration of land known as Esa Akpan Nsek, an order of perpetual injunction against the Appellant and Five Million Naira damages for continuous trespass to the said land.

Judgment was delivered by Uwana, J., on the 29th of March, 2012. After the judgment, the Learned trial Judge invited counsel for the parties to address the Court on why the Respondent should not be non-suited. Both counsel addressed the Court on 30/3/2012 whereby the Learned trial Judge entered an order of non suit against the Respondent.

The Appellant had raised in his pleadings and evidence that the Respondent’s suit was statute barred, since the adverse claim in favour of the Appellant over the land in dispute was created in 1987 and the Respondent became aware of this fact in 1995, while this suit was commenced in 2008.

?In a considered judgment, the Learned trial Judge dismissed the issue of limitation of Action raised by the

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Appellant and entered an order of non suit for the Respondent. The dismissal of the issue of limitation of action and the order of non suit culminated in the filing of this appeal.

RELEVANT FACTS:

The Respondent and the Vendor who sold the land in dispute are both descendants of Akpan Nsek, who deforested a vast land known as and called Esa Akpan Nsek.

Akpan Nsek had two children who survived him at death, namely, Eduok Obong and Obong. The property of the said Akpan Nsek was partitioned and shared into two, each branch of the two houses (the children of Akpan Nsek) being given 63 traditional plots from a total of 126 traditional plots of land. In other words, the Appellant Vendor’s branch was given 63 plots, while the Respondent’s branch was given 63 plots of land. The Respondent’s contention is that the land sold to the Appellant (defendant at the trial Court) formed part of the 63 plots of land that was given to his own branch of the family and not from the 63 plots that were shared to the Appellants’ Vendors’ branch of Akpan Nsek family. The Respondent who was the plaintiff at the trial Court did not file any survey plan in the

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suit. The Appellant in his pleading averred that he bought the land now disputed by the Respondent in 1987. At the time of the purchase the father of the Respondent who took control of the 63 plots of land shared to the Respondent branch of the family (at the time the land was partitioned in 1982) was still alive. After the purchase in 1987, the Appellant took control of the land and planted several crops therein.

The father of the Respondent was said to have died in 1994, about 8 years after the Appellant had bought the land. The Respondent took over the control of the land given to his own branch of the family after the death of his father. The Respondent’s father never disputed the sale by the other branch to the Appellant from 1987 until he died in 1994. The Appellant was said to have taken over possession in 1987 and in 1995 obtained a Certificate of Occupancy. The Respondent challenged the possession of the Appellant’s land for the first time in 1995. He later was said to have abandoned disputing over the land but sued in 2008. The Learned trial Judge in his judgment dismissed the Appellant’s plea that the action was statute barred and also

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