Chief E.H. Etim & Anor. V. Ntoe Andrew O. Ansa & Ors.

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment)

This is an appeal from the judgment of Itam, J of the High Court of Justice, Calabar Judicial Division, Cross River State. The judgment in Suit No. HC/219/06 was delivered on 26/2/07.

Endorsed on the Writ of Summons issued on 6/6/06 are the claims of the Plaintiff’s against the defendants:

1. An order that the plaintiffs are entitled to the Certificate of Occupancy over the land in dispute described in Plan No. DAAC/CR/18/1 dated 29/11/77 and made by Dien Aniyom, licensed Surveyor.
2. AN ORDER of perpetual injunction restraining the Defendants by themselves, their agents, servants or assigns from upon or dealing with the land in dispute in any way without the consent and authority of the Plaintiffs.
3. An order for account and return of all monies/proceeds collected over the land in dispute by the Defendants.
4. N15 million Naira damages of trespass. (See page 5 of the records)

Upon service on them of the writ and statement of claim the defendants filed a memorandum of conditional appearance on 14/8/06.

In their statement of defence dated and filed on 20/10/06 the defendants denied the plaintiffs’ claim in its entirety and counter-claimed against the plaintiffs for:

(a) A declaration that the counter-claimants are entitled to the statutory right of occupancy in respect of the land in dispute and more particularly delineated on Survey Plan No. DAACO/CR/18/1 of 29/11/77.

(b) An order of perpetual injunction restraining the plaintiffs, their agents, secants or privies from howsoever trespassing or in any way interfering with the said land in any manner adverse to the rights and interest of the counter claimants.

(c) Fifteen Million Naira (N15,000,000.00) as damages for trespass and illegal interference in the counter claimant’s quiet and peaceable enjoyment of the land by the plaintiff and their agents.”

The plaintiffs filed a reply to the statement of defence and defence to the counter-claim on 6/11/06.

The defendants’ rejoinder was dated, and filed on 19/1/07. Earlier on a motion for substitution was filed on 4/2/06 with a 4 paragraph affidavit in support. The plaintiffs filed a 10 paragraph counter-affidavit on 7/12/06. However there is nothing on the records to show if, and when, the application was moved and granted or denied.

Consistent with their conditional appearance the defendants, in a motion on notice dated, and filed on 12/2/07 asked for

i. An order dismissing plaintiffs’ claim for being statute-barred” (See page 155 of the records)

The motion was supported by an affidavit of 6 paragraphs against which the plaintiffs filed a counter-affidavit of 13 paragraphs on 16/2/07.

The trial Court took submissions of learned counsel for the parties and in its judgment which is actually a ruling on the application to dismiss the suit, the trial court held: