Edem Ekpenyong & 3 Ors Vs Chief Akiba Etok Ayi & Anor (1973)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

The present appellants are the defendants to an action instituted against them by the respondents as plaintiffs, in the High Court, Calabar, (South Eastern State) in which the plaintiffs claim a declaration of title to land situate in “Ekene Village in Okoyong Division” and called by the plaintiffs “Ekene Esuk”, 100 pounds damages for trespass and a perpetual injunction. The plaintiffs’ statement of claim avers that the defendants had been sued “for themselves and on behalf of the family of Edem Ekpenyong.” This is contained in paragraph 2 of the statement of claim, which reads in full as follows:

“The defendants are Efiks and the 1st defendant is the head of Edem Ekpenyong family. The 2nd, 3rd and 4th defendants are members of the said family of Edem Ekpenyong, a branch of Eyamba family of Calabar.The defendants are sued for themselves and on behalf of the family of Edem Ekpenyong aforesaid.”

The statement of claim further states that the ancestor of the plaintiffs,one Agbo Ebe, was the original owner of the land in dispute, the land being part of lands awarded to Agbo Ebe on a share-out of lands acquired by conquest by the progenitor of the plaintiffs and his allies. By their statement of defence, the defendants deny that Agbo Ebe ever occupied or owned the land in dispute and with respect to their own ancestry paragraph 2 of the statement of defence states:

“In answer to paragraph 2 of the statement of claim the defendants deny that they are Efiks or that they hail from Eyamba Family of Calabar. They hail from Ekene Iquo Akpo Ebo Family.”

At the trial, the plaintiffs gave evidence to support their statement of claim.

One of the plaintiffs’ witnesses by name Ayi Ita Ekpo, a farmer, gave evidence inter alia as follows:

“The defendants are descendants of Iquo Agbo Ebo, the daughter of Agbo Ebe, plaintiffs’ ancestor. The defendants’ male ancestor came from Eyamba, in Calabar.”

Another of plaintiffs’ witnesses Etubom Ekpenyong Otu Ekpo, had this to say of the defendants in the course of her evidence under cross-examination:

“Q. Who was Iquo Agbo Ebo

A. She was the daughter of Agbo Ebe. Q. Where did she live

A. I dont know.”

For the defence the second defendant, Okokon Ekpenyong gave evidence and stated inter alia that the land in dispute called and known by the defendants as Ekene Iquo Agbo Ebo was so named after Iquo Agbo Ebo, the daughter of Agbo Ebo. He stated that he was related to Agbo Ebo and that Iquo Agbo Ebo was the first person to live on the land in dispute. He stated further that Iquo Agbo Ebo was married (he did not know the name of her husband) and was one of the four children of Agbo Ebo, the others being Ayi Agbo Ebo, Akpo Agbo Ebo and Ebo Agbo Ebo. He denied that it was the plaintiffs’ ancestor that had given them the land on which the defendants were living. He stated positively that it was Agbo Ebe who had personally granted the land in dispute to his daughter Iquo Agbo Ebo, who was the ancestor of the defendants. In the course of cross-examination he was questioned about the concession made by his people sometime in 1951 and before the present action that the land in dispute was owned by the plaintiffs.

He answered as follows: