Chief Johan Ikalama & Ors. V. Mr. Velvet Edward & Os. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TUNDE O. AWOTOYE, J.C.A (Delivering the Leading Judgment)

This is the judgment in respect of the ruling of Kobani J., of High Court of Rivers State delivered on 12/2/2007.

The plaintiff’s claims against the defendants at the court below are as follows;

“WHEREFORE the plaintiffs institute these proceedings and claim as follows, that is to say:-

1. A declaration of statutory right of occupancy to the piece or parcel of land known as ELIOKIA as depicted and shown on survey plan No. CTH.66(L/D) prepared by Mr. C.T. Horsfall, Licenses Survey. Iyima and situate in Abuloma Okirika Clan in the Port Harcourt Local Government Area of the Rivers State of Nigeria within the jurisdiction of this Honourable Court.
2. The sum of N500,000.00 (Five hundred thousand Naira) being damages for trespass committed by the 1st set of defendants in January, 1985 on the said piece of parcel of land in possession of the plaintiffs.
3. Perpetual injunction restraining the defendants by themselves, their privies, servants and/or agents or otherwise howsoever from further trespassing on the plaintiffs’ piece or parcel of land aforesaid.”

The defendants in response to the statement of claim filed further amended statement of defence.

In paragraph 1 and 4 of the further amended statement of defence, the defendants averred as follows:-

“1. Save as is herein expressly admitted’ the defendants deny each and every allegation as contained in the plaintiffs’ statement of claim. The defendants hereby specifically raise the following defences:-

(a) Estoppel by record

(b) Res Judiciata

(c) Estoppel by inaction

Notice is hereby given of the defendant’s intension to raise a preliminary objection to the whole action.

4. Paragraph 4 of the statement of claim is denied. The land in dispute is part of the defendants’ land. It is the subject of a High Court judgment Suit No. P/46/66 in which the Elekohia-Diobu people obtained judgment for title, trespass and injunction against the present plaintiffs. The said action went up to the Supreme Court as SC/23/1980 (reported officially in 1981 5 S.C. page 291 – CHIEF VICTOR WOLUCHEM & ORS. VS. CHIEF SIMON GUDI & ORS.) The defendants were put on this land by the Elekohia, Diobu people. Reliance will at the trial of this suit be placed on the following:-

(a) The pleadings and Proceedings in Suit No. P/46/66 up to the Supreme Court.

(b) Plan No. UND/29/64B/RS of 5th November 1964 and amended 12th March, 1973.

(c) Defendants’ plan No. ONC/86/R57-LD