Etinyin J. L. E. Duke (for and on Behalf of Ikot Edem Odo Village) V. Chief E. O. Ephraim & Anor (2009)

LawGlobal-Hub Lead Judgment Report

M. A. OWOADE J.C.A:

This is an appeal against the Ruling of Philomena N. Ekpe J. in Suit No. HCA/4/2005 delivered on 31/3/2006 at the Akpabuyo Judicial Division of the High Court of Cross River State.

The Appellant as Plaintiff before the High Court initially instituted this action in a representative capacity for and on behalf of Ikot Edem Odo village – by an originating summons filed on 21/8/2005 against 7 Defendants including the two (2) Respondents in this appeal as 6th and 7th Defendants. Later the Plaintiff/Appellant was granted leave to maintain the action in his personal capacity.

The question for determination in the said summons was:

Whether, in accordance with the Land Use Act, 1978, the 3rd, 4th & 5th Defendants have the jurisdiction to declare that the landed property of Ikot Edem Odo village known as and called “Esa Edet Efio Otu” situate at Ikot Edem ado village, Akpabuyo is the property of Ikot Ekpe Eyo village represented by the 6th Defendant” The relief sought by the Plaintiff / Appellant in the originating summons were as follows:

(a) A declaration that the purported transfer of “Esa Edet Efio Otu” in Ikot Edem ado village to Ekpo Eyo village in the report dated 20/12/2004 is null, void and of no effect whatsoever and is against the provisions of the Land Use Act 1978.

(b) An order directing the 1st & 2nd Defendants not to act on the finding / recommendation of the 3rd, 4th & 5th Defendants dated 20/12/2004

(c) A declaration that “Esa Edet Efio Otu” the land in question is the bona fide property of Ikot Edem Odo village.

(d) The sum of N100, 000.00 (One Hundred Thousand Naira) as general damages against the 6th Defendants for unwarranted interference with the Plaintiffs enjoyment of his community’s property and for expenses incurred at the Nigeria Police Zone 6, Calabar on 26/4/2004 following a false report lodged against the Plaintiff and some of his Council members in respect of the land in question.

On 5th May, 2005, the 1st, 3rd – 5th Defendants in the court below brought a notice of preliminary objection for an order striking out the Plaintiff’s originating summons on grounds of incompetence by reason of Plaintiff’s violation of Order 1 Rule 2(2) (a), 8(b) of the High Court (Civil Procedure) Rules, 1987.

The above motion was pending in the courts file from the record when the Plaintiff /Appellant filed a motion on Notice on 16/5/2005 praying to amend his originating summons and a deeming order. On 17/5/2005, the learned trial Judge heard Counsel on the Plaintiffs / Appellant’s motion on notice for amendment of originating summons.

In a considered Ruling delivered on 14/6/2005, Philomena Ekpe J. allowed the application for the amendment of the originating summons and held at page 118 of the record as follows:

“…the mere fact that the Respondent’s Counsel had filed a preliminary objection to the originating summons does not in my view preclude the Applicants from amending his pleadings. Since the law allows an Applicant to amend his pleadings at any time without creating a new suit, I hold that the Applicant is on the right track in seeking to amend his pleadings at this stage. I do not think any injustice will be done the other parties if this amendment is allowed as it merely seeks to correct certain errors in the originating summons in order to bring out the actual issues involved. Consequently and in the light of all the above, this application for amendment is hereby granted accordingly.”

Thereafter, the court adjourned the matter to the 29/6/2005 for hearing. Eventually, the court heard arguments on the merit of the originating summons and on 30/3/2006 delivered another considered Ruling where it held at page 133 of the record as follows: