MR. Emmanuel Ekpenyong & Anor V. MR. Jay Obanya & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I NDUKWE-ANYANWU, J.C.A

This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar in suit No.HC/299/2007 delivered on 6th day of October, 2009. The 2nd Appellant’s father leased a large parcel of land to the 1st Appellant’s father. Part of this land is this land in dispute in this appeal registered as No.97 at page 97 in volume 116 at the Land Registry, Calabar. In 1977, Chief Iban Amanso applied and was joined as the 12th Defendant in suit No.C/88/1976.

The claim of Kasuk Qua Clan was for a declaration of title for the vast land including this one in dispute. Also the Plaintiffs claimed for damages for trespass and for an order of injunction.

At the trial Court, judgment was given in favour of the claimant, Kasuk Qua Clan. The defendants filed an appeal No.CA/C/210/1996 in the Court of Appeal and the decision was reversed. The Kasuk Qua Clan filed an appeal in the Supreme Court No.SC/92/2002 and still lost. The Supreme Court in affirming the decision of the Court of Appeal dismissed the claims of the Kasuk Qua Clan and allowed the Counter-claim of the 2nd Appellant’s father.

The judgment of the Supreme Court delivered on 17th day of June, 2005 was in favour of Chief Asuquo Iban Amanso and so the 1st Appellant retained the land, a portion of which belonged to the 2nd Appellant. However, in March, 2007, the respondents in this appeal began to build on the land on the strength that they have a Certificate of Occupancy over the land.

The 1st Appellant filed this suit claiming the following in the amended writ of summons:

“(i) An order setting aside Certificate of Occupancy No.CA/5523/1998 granted lis pendens to the defendants over that portion of the plaintiffs’ Iban Amanso Residential Layout land edged green in Survey Plan No.ASNL/1181/LD/ filed in this suit.

(ii) An injunction restraining the defendants jointly and severally by themselves, their agents, workmen, servants or hireling whomsoever from entering into and doing any manner of thing whatsoever, and or committing further acts of trespass on the land with Survey Plan No.ZAP/3772/205 which land forms part of the parcel edged green in Survey Plan No.ASNL/1181/LD.

(iii) N10,000,000.00 (Ten Million Naira) general damages against the defendants for acts of trespass committed by themselves or their servants and assigns on the said land.”

“(i) The 2nd Appellant also claimed the same in his own statement of claim

“(i) An order setting aside Certificate of Occupancy No.CA/5523/1998 granted lis pendens to the defendants over that portion of the plaintiffs’ Iban Amanso Residential Layout land edged green in Survey Plan No.ASNL/1181/LD/ filed in this suit.

(ii) An injunction restraining the defendants jointly and severally by themselves, their agents, workmen, servants or hireling whomsoever from entering into and doing any manner of thing whatsoever, and or committing further acts of trespass on the land with Survey Plan No.ZAP/3772/2005 which land forms part of the parcel edged green in Survey Plan No.ASNL/1181/LD.

(iii) N10,000,000.00 (Ten Million Naira) general damages against the defendants for acts of trespass committed by themselves or their servants and assigns on the said land since March, 2007.”

The Respondents filed their statement of defence and Counter-claimed as follows: