Francis Udo Ekpeyong & Ors Vs John H. Essiet & Ors (1975)

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G. S. SOWEMIMO, JSC 

This appeal is against the judgment of Balonwu, J., (as he then was), delivered at Uyo on the 30th June 1965, in Suit C/12/60. The judgment was an award of £50 as general damages for trespass in favour of the plaintiffs, now respondents before us, against the appellants who were defendants in the High Court. The hearing of the case commenced at Calabar and later concluded at Uyo. Although the claim was for damages for trespass the issue of title was raised in the pleadings. We wish to refer to the following averments as setting out the issues joined by the parties. The plaintiffs in their Statement of Claim averred as follows:-

“1. The plaintiffs are the Chiefs and Elders of Village of AFIA NSIT (2) Uyo Division, and sue for themselves, with the authority and consent and on behalf of the people of AFIA NSIT (2), and with the approval of the Court. The defendants are the chiefs and elders of the village of Akpa Utong, Uyo Division, and are sued herein jointly and severally.

2. The land, the subject matter of this action (hereinafter called the land in dispute) is known and called NDUN OBIO NKO, and is situated at Uyo Division, and bounded as follows:-

(a) On the EAST by the land of Iko Oku Akpan people.

(b) On the SOUTH by the land of the plaintiffs, and Ikot Itok people.

(c) On the NORTH by the land of AFIA NSIT people i.e. plaintiffs.

(d) On the WEST by the village of the plaintiffs. These boundaries are clearly shown and described with ancient boundary marks and trees, and the said boundaries and delineated on the plan filed in this action, verged pink.

3. In the year 1918, the Ikot Etok people took action against the plaintiffs challenging their rights on the said land, NDUN OBIO NKO, and the District Officer, Mr. R. B. Brooks, after examining the merits of the case, dismissed same awarded title to the said land to the plaintiffs, vide suit No. 8/1918.

4. The land in dispute had been from time immemorial the absolute property of the plaintiffs and their people who have at all times exercised maximum acts of ownership over the same by farming, leasing, collecting palm fruits, building and doing diverse manners of work therein without let or hindrance for the defendants or their people.

5. The plaintiffs from time immemorial had been in possession of the land in dispute, during which period it had all been peaceful, the defendants respecting the right, title and interests of the plaintiffs and their people on the said land in dispute, and the plaintiffs and their people exercising their rights of ownership and exclusive enjoyment without disturbance until in February, this years, when the defendant and their people interfered with the rights of plaintiff on the said land, by brushing same for farming purposes.

6. WHEREFORE (a) The Plaintiffs claim from the defendant jointly and severally the sum of £500 being general damages for trespass in that the Defendants during the month of February, 1960, without the leave or licence of the plaintiffs, wrongfully broke and entered Plaintiffs’ piece and parcel of land known and called NDUN OBIO NKO situate at Afia Nsit (2) in the Calabar Province, which had been in actual and peaceable possession of the plaintiffs, and brushed same for farming. (b) Perpetual injunction restraining the defendants, their agents and or servant from further acts of trespass to the said land NDUN OBIO NKO.”

The defendants, in their Statement of Defence in reply, averred:-

“1. Save as is herein expressly admitted the defendants deny each and every material allegation of facts contained in paragraphs 2, 3, 4 and 5 of the Statement of Claim as if the same were herein set out and traversed seriatim, and will put the plaintiffs to the strictest proof of each and every such allegation.