Ette Akpan Ette V. Akpan Amos Harry Edoho & Anor (2008)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, JCA

This is an appeal against the Ruling of Hon. Justice Andrew Okon, sitting at High Court, NO.2, Eket, Akwa Ibom State, in Suit No. HEK/16/2002 delivered on 9/2/06.

The appellant, who was the plaintiff at the Court below, instituted proceedings against the respondents, at the High Court NO. 2, Eket, claiming in paragraph 20(a) of the Amended Statement of Claim at page 24 of the record as follows:

“(a) A declaration that he is entitled to the Statutory Right of Occupancy over piece or parcel of land situate along Udo Umo Street, Afaha Eket, Eket, which land is well known to the parties and as is shown in the plaintiff’s father property Survey Plan of No. JEJ/AK/663 of 2nd January, 1990.

(b) An order of perpetual injunction restraining the defendants from committing trespass on the land by along any manner of work thereon.

(c) General damages of N300, 000.00 for trespass on the land and causing waste to it.”

Hearing in the case commenced on 30/3/04 when the plaintiff testified as PW1. The respondents, who were the defendants at the court of trial, did not file a statement of defence. However, on the 16/2/04, the respondents filed a motion on notice for:

“1. AN ORDER striking out this suit for want of jurisdiction.

2. AND for any such further or other order(s) as this Honourable Court may deem fit to make in the circumstances.”

The motion is supported by a 9 paragraph affidavit to which 5 exhibits marked A, B, C, D and E were attached. Exhibit “A” is the record of the Customary Court’s proceedings. Before the trial court, the respondents contended that the subject matter of the parties in Exhibit “A” is the same as that of Suit No. HEK/16/2002, in the trial High Court. The respondents contended that it is an abuse of the court process for the appellant to institute an action at the District Court and at the court of trial involving the same parties and the same subject matter.

The appellant’s counsel, at the trial court, Mr. B. F. Etuk, relied on the appellant’s counter-affidavit of 10 paragraph and submitted that the Eket District Court had no jurisdiction to hear and determine the suit pending before it because the subject matter of the suit are pieces and parcel of land located within Afaha Eket group of villages in Eket Urban area. He relied on section 39(1)(a) Land Use Act.

The trial Judge after considering the supporting affidavit, Exhibits “A” – “E”, the counter-affidavit and the submissions of counsel before it, ruled on 9/2/06 that the suit filed by the appellant, Suit No. HEK/16/2002 is an abuse of the court process. The trial Judge struck out the suit with N1, 000.00 only to the respondents. See pages 152 – 165 of the record.

Dissatisfied with the trial court’s Ruling, the appellant on the 19/4/2006 appealed to this court on 5 grounds. From the 5 grounds the appellant distilled only two issues for determination in the appellant’s brief dated 7/2/07 and filed the same day but deemed filed on 18/6/07 by this Court.

The issues are:

“(1) Issue NO.1 (Grounds 1, 4 and 5) was (sic) trial court justified to hold that Suit No. HEK/16/2002 amounted to an abuse of process of court?