Mr Amaku Effiong Ene V. Chief Paul Bassey Etim (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

In the amended Statement of Claim dated 21/7/2008 the Plaintiff suing as the Administrator of the Estate of Late Prince Edem Effiong Edem Ita claimed the following reliefs against the Defendant:-

“WHEREOF the Plaintiff claims as follows:

1. A declaration that by virtue of the judgment in C/26/82 the Plaintiff is vested with a deemed Right of Occupancy over the property known as No. 12, Mayne Avenue Extension, Calabar.
2. An order of forfeiture of the property situate (sic) at No. 12 Mayne Avenue Extension, Calabar from the Defendant.
3. A declaration that all agreements of sale, leases, gifts and grants whatsoever made by the Defendant and/or in favour of the defendant without the consent of the plaintiff’s family in respect of the property lying and situate at No. 12 Mayne Avenue Extension, Calabar are null and void and totally of no effect.
4. An order of perpetual injunction restraining the Defendant by himself, his servants, and agents or otherwise whosoever from entering the said property lying and situate at No. 12 Mayne Avenue Extension, Calabar or doing any manner of work therein.
5. N20 million damages for trespass.

Cost of N50,000.00

The Plaintiff averred that he is the administrator of the estate of Prince Edem Effiong Edem Ita’s family and the property shown in Survey Plan No. DAACO/CR/19/LD 2 drawn by ANIYOM SURVEYS, chartered Geomatic surveyor was a subject matter in suit Nos.C/16/77 and C/26/82 which belonged to Prince Edem Ededem Archibong (whose name was abridged to Prince Edem Effiong Edem Ita). He owned a large expanse of land bounded by Bateba street in the North, Goldie street by the south, Alexander Edem Edet by the West and Mma Amika land by the East. The Plaintiff on his return from the National Youth service corps programme in 1976 noticed that one Bassey Edet Ekong (a.k.a Akamba De Boy) had encroached into a large portion of his family’s land and sold same to many people including Madam Inyang Effiong Ene (Defendant’s mother) without the consent of his (Plaintiffs) family members. The family represented by Madam Ewang Edem Effiong and Madam Atim Edem Effiong (Plaintiffs mother) instituted action in Suit No. C/16/77 but they were non-suited. They then commenced another action in suit No. C/26/82 against Bassey Edet Ekong for trespass and a declaration of a right of occupancy over the land encroached upon and sold by Bassey Edet Ekong including the portion sold to the Defendant’s mother. The court in suit C/26/82 delivered judgment in favour of his family and also ordered all the tenants who bought land from Bassey Edet Ekong to atone tenancy to his family but the Defendant refused. An appeal against that judgment was struck out on 20/1/94 in Appeal No. CA/E/96/95. In an effort to enforce the judgment following the refusal by the defendant to atone the tenancy, an application was brought before the chief Magistrate’s Court, Calabar, in suit No. MC/477/06 which granted an order ejecting the Defendant from the property but the Defendant applied to the High court in suit No. HG/106/2007 for order of certiorari to quash the proceedings in suit MC/47710:6 and this was granted on 11/5/2007. It was on account of the High court quashing the proceedings in the Chief Magistrate’s court and re-instating the Defendant to the premises that made the plaintiff to institute action in suit No.HC/144/2007 where he obtained judgment in his favour from which the Defendant filed this appeal dated 9/7/2010 containing two grounds of appeal (see pages 234 – 235). The grounds are:

GROUND 1

The learned trial Judge erred in law by assuming jurisdiction to entertain the suit which is a land matter whose cause of action is statute barred.

PARTICULARS OF ERROR :

The defendant/appellant acquired his title to the disputed property in 1971 and had remained in undisputed possession since then only for the plaintiff to sue in the year 2007 and the learned trial Judge found for the plaintiff contrary to the express provision of Section 1 of the Limitation Law Cap L14 Laws of Cross River State of Nigeria 2004.

GROUND 2

The learned trial judge erred in law when he held that the defendant/appellant is affected by the judgment of KOOFREY CJ delivered in Suit No.C/26/82 contrary to the claims in the (sic) and the body of the said judgment.

In the Writ of Summons in C/26/82 and as the plaintiffs predecessors in title particularly in paragraph 3 of the claim wanted a conciliation of any ported agreement of sale or lease made by the defendant to the land in dispute dating from 1976 to various of his purported tenants including that Okon Nset of 109 Goldie Street, Calabar Registered as Deed No.65/65.61 dated 21/12/73.

The following three issues were formulated for determination:-

1. Whether the learned trial Judge was right in assuming jurisdiction and finding for the plaintiff/Respondent when the action was statute barred by virtue of section 1 of the Limitation Law cap. L14 Laws of cross River state 2004.
2. Whether the learned trial Judge was right in fairing to consider the equitable defences of laches and acquiescence raised by the Defendant/Appellant in his favour.
3. Whether from the facts and circumstances the judgment in suit No. c/26l82 did affect the Defendant/Appellant as to fix him with liability for trespass.

The Respondent raised two issues for determination as follows:_