Mr. Emmanuel Atunka & Anor V. Undie Aboki & Anor (2016)

LawGlobal-Hub Lead Judgment Report

CHIOMA NWOSU-IHEME, J.C.A.

The Respondents, as claimants, in the Obudu Judicial Division of the Cross River State High Court instituted a suit against the Appellants as Defendants for declaration of land known as Ungwu-Abeb, an order of perpetual injunction against the 1st and 2nd Appellants, Ten Million Naira general damages for trespass to the said land.

The Respondents filed their writ of summons and statement of claim on the 20/6/12.

Appellants filed their joint statement of defence wherein they pleaded at paragraph 39 that they would contend at the trial that the claimants’ action is statute barred.

Consequently, Appellants filed a motion on notice along with a written address on the 12th of December, 2012 to determine the issue whether or not the action is statute-barred determined before the hearing of the substantive suit.
Respondents filed a counter affidavit with their response on the 18th of December, 2012.

On the 25th of February, 2013, Justice C. E. Ita in a considered Ruling dismissed the preliminary objection. This appeal is predicated on that Ruling.

?The Respondents in

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their claim have alleged that they are the owners of a parcel of land known as and called “Ungwu-Abeb” along Atiekpe/Ikwomikwu Road, Atiekpe village, Obudu which they inherited from their grandfather Akomaye Nick (a.k.a Ibonle).

The Respondents allege that the 2nd Appellant among other family members, trespassed on the land in dispute in 1996 and commenced building a brick house thereon.

It is on Record that there were efforts at settlement by the parties as well as litigation. Despite having knowledge that the 2nd Appellant was building on the land, the Respondents did not sue the Appellants for the said land.

However, in 2012, the Respondents went to Court claiming a declaration that the said land which to their knowledge the 2nd Appellant started building on since 1996 belongs to them, they also prayed for injunction and damages for trespass.

?Appellants on their side have asserted that the land is Udie-Amu’s family land held by Ateleye Imbufe and Likoliwhe who were children of Imbufe Itungbe who was a descendent of Utsese who founded the whole of Atiekpe, while Ibonle was a stranger in Atiekpe who was accepted as an immigrant. (Pages

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