O. N. Nwokoro & Ors v. Thomas Azipu Ashue (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

ADAMU JAURO, JSC (Delivering the leading judgment)

This is an appeal against the judgment of the Court of Appeal, Calabar Division in appeal No. CA/C/119/2008 delivered on 22nd April, 2010, wherein the court affirmed the judgment of the High Court of Cross River State, which had earlier granted the reliefs sought in the respondent’s statement of claim and dismissed the appellants’ counter-claim.

Brief facts of the case

The respondent as plaintiff commenced the suit before the trial court by a writ of summons and statement of claim. At paragraph 14 of his statement of claim, he sought for the following reliefs against the appellants:

“(a) A declaration that the plaintiff is the person entitled to the grant of the right of occupancy over the plot known as and called plot 227, situate thereto at New Layout, Obudu.

(b) An order of perpetual injunction, restraining the defendants, jointly or severally, with their agents, servants and privies from entering into or interfering in any guise with the plaintiff’s peaceful enjoyment of the aforesaid plot 227.

(c) The sum of N1,000,000.00 only as general damages for trespass, committed upon the said plot by the defendants, agents, servants and privies.”

In response to the statement of claim, the appellants filed a statement of defence and counterclaimed thus:

“(a) A declaration that the defendants are entitled to the right of occupancy over all the piece or plot of land known as and called plot 223, Bekpam/New Layout, Obudu.

(b) An order of perpetual injunction restraining the plaintiff with his agents, his privies, thugs, heirs or his representatives in whatever guise from entering, interfering, vandalizing or disrupting in any form the peaceful enjoyment of plot 223.

(c) The sum of N3,000,000.00 (Three million naira) as general damages for trespass and vandalisation of defendants property by the plaintiff.”

After the customary filing and exchange of pleadings, the matter proceeded to trial wherein the respondent as plaintiff testified for himself and called one other witness. He also tendered exhibits in evidence. On their part, the appellants as defendants/counter-claimants also called two witnesses, the 2nd and 4th appellants, as DW1 and DW2. They equally tendered exhibits.

The case of the respondent as borne out of his pleadings and evidence led at trial was that in 1976, he was allocated a plot of land numbered plot 227 by Obudu Urban Development Council, which measured 100ft by 100ft. The land had an old dilapidated building and he surveyed the plot. It was also his case that the 5th defendant/appellant and its worshippers broke into the dilapidated building in 1980 and started worshipping therein.

It was the further case of the respondent that when he challenged them, they pleaded with him to allow them use the place for worship until he was ready to develop the plot, and that he agreed with them verbally to allow them to continue using the building for worship, while he continued farming on the area around the building and the adjoining swamp. The defendants/appellants trespassed into his farm in 1994 and destroyed all his crops on the land whereupon he reported the act of trespass to the Obudu Area Town Planning Authority, which summoned the representatives of the appellant and the respondent for mediation.