Mr. Ferdinard Ekpo Mbang V. Mr. Eldred E.u. Offiong (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment)

The appellant was the defendant and the Respondent the plaintiff before the High Court of Justice, Calabar, Cross River State. The appellant lodged an appeal against the ruling of Hon. Justice Idem Inyamba – J., (as he then was) delivered in favour or the Respondent on 18th December 2007. The Respondent founded his claim in trespass, damages and perpetual injunction. The writ of summons was filed on 21st December, 2004 supported by a statement of claim.

The Statement of Claim was on diverse occasions amended with leave of the Court. The Respondent’s claim in the Further Amended Statement of claim of 22nd February, 2007 relates to plot No.30 Spring Road, also known as “Essien Etim of Offiong Avenue” Calabar, Cross River State. The appellant also filed a statement of Defence on 21st February, 2006 denying liability. The Respondent’s Reply to the statement of Defence was filed on 20th March, 2006. The Appellant was granted leave by the Court to file an Amended Statement of Defence on 19th February, 2007.

The Respondent pleaded that sometimes in 1971 the Essien Etim Offiong family made a grant of the piece of land to the plaintiff’s late father, Mr. Essien Ukpong Offiong who is a member of that family. Upon grant, the Respondent helped his father to survey the land. The survey plan was pleaded as No.8943 of 11th January, 1978.

When the late father could not build on the land, the Essien Etim Offiong family entered into another agreement with the Respondent in 1981 over the land. The Respondent’s father died shortly after this agreement of 1981. Being the first son of his deceased father, the grantor’s family allowed the Respondent to inherit the land. The Respondent performed all the traditional rites associated with the gift of the land in Essien Etim Offiong family.

There was no time limit within which the Respondent was to build on the land. The Respondent subsequently obtained letters of Administration over his late father’s Estate on 11th July, 1986. This was followed by an application for the grant of a statutory Right of occupancy over the land. The Certificate of Occupancy No.CA/3335/1989 dated 2nd June, 1989 and registered in Calabar was pleaded by the appellant.

Since the Respondent was working outside Calabar he gave authority to his late uncle Francis Ukpong Offiong to take possession of the property and look after it. The Respondent pleaded the letter of authority dated 19th December, 1984 in paragraph 16 of the Further Amended Statement of Claim. The plaintiff’s uncle took over possession of the disputed land and cultivated seasonal crops such as maize, vegetables, yams, etc.

In the Further Amended Statement of claim, the Respondent pleaded that when the dispute arose he gave a power of Attorney to his uncle by name Francis Ukpong Offiong (deceased) who commenced action against the appellant in 1992 in suit No.C/12/1992. But when his attorney died and the case could not proceed it was struckout. The Respondent instituted another suit No. HC/345/2002 but this also could not be proceeded with and suffered the same fate. In the Further Amended Statement of Claim the actual date of trespass and the reliefs sought by the Respondent against the appellant were pleaded as follows:.

“18. Sometimes in 1991, the uncles of the plaintiff, Francis U. Offiong, Cyril U. Offiong and other members of the family noticed some encroachment on the land situate at No.30 Spring Road, Calabar whereupon the uncles of the plaintiff discovered the Defendant to be the person who has trespassed on the land at 30 Spring Road where he placed on the land sand, chips and other building materials in preparation for the construction of a building. He also removed beacon stones planted there by the plaintiff’s, surveyor.

19. The plaintiff’s uncle, Mr. Cyril U. Offiong approached the Defendant and warned him to vacate the property as it belongs to his nephew, the plaintiff in this case. He refused and claimed that he bought the land from one Mr. Dominic Edet Bassey. The plaintiff states that after the transfer of the land to the plaintiff by Essien Etim Offiong family after the death of the Plaintiff’s father, the family did nothing again in respect of the land or made grant of same to Mr. Dominic Edet Bassey or anybody at all. All efforts, to persuade the Defendant to see reason and vacate the property, including reporting to the parish priest of the church where the plaintiff’s uncle and defendant worship proved abortive. Letter dated 12th September, 1991 written to the defendant is hereby pleaded and will be relied upon at the trial. The Defendant is “given notice to produce the original copy.

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22. As the Defendant persisted on his trespass on the plaintiff’s land, the plaintiff, by Attorney sued the Defendant for trespass. The plaintiff’s plan No.AMS/CR/ILD showing the initial area of trespass prepared by A.O. Amah, Licensed Surveyor dated 22nd May, 1992 filed with the statement of claim is hereby pleaded and will be relied upon at the trial of this suit.
23. The plaintiff states that the Defendant has since encroached upon the entire land beyond the extent shown in survey plan No. AMS/CR/ILD aforesaid.
24. The Defendant has trespassed on the plaintiff’s land, uprooted some beacon stones planted by the surveyor of the plaintiff and destroyed the economic crops planted on the land.
25. The Defendant is determined to continue his encroachment on the plaintiff’s land unless he is restrained by this Honourable Court.
26. The plaintiff has suffered damages as a result of the defendant’s encroachment on the plaintiff’s land situate at No.30 Spring Road, Essien Town, Calabar, whereupon the plaintiff claim as follows:

(a) A declaration that the plaintiff is the rightful and bona fide owner of the piece or parcel of land covered by Certificate of occupancy No.CA/3365/1989 and delineated on survey plan No.R/m/8945.

(b) 2,000,000.00 (Two million Naira) special and general damages for trespass in that the defendant, without any lawful excuse and/or consent and authority of the plaintiff or his agent, trespassed on the plaintiff’s piece or parcel of land situate and lying at No.30 Spring Road, Essien Town, Calabar, removed beacon stones, destroyed crops planted on the land and started construction work despite repeated warning from the plaintiff and his agents.

(c) Perpetual injunction to restrain the defendant by himself, his servants, workman, agents, assign and/or privies from doing any manner of work on the land or interfering with the plaintiff’s right over the land at No.30 Spring Road, Essien Town, Calabar.”

In the Amended Statement of Defence of 19th February, 2007 the appellant pleaded how he acquired the land in dispute. The appellant then gave notice of what he shall contend at the trial in the following paragraphs of the Amended statement of Defence as follows: