Ovai Ekpe Okon V. Ovai Bassey Enem Enyiefem & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Cross River State, Calabar Division, Coram Hon. Justice Obojor A. Ogar, delivered on July 19, 2012 in Suit No. HC/348/2011, in an application for the enforcement of the fundamental rights of the 1st to 5th Respondents (the 1st set of Respondents), who were the applicants at the lower Court.

?The facts leading to this appeal as can be gleaned from the Record of Appeal reveal that a land dispute dating as far back as 1938 existed between the Enusokwe people of Ediba, represented in this appeal by the 1st-3rd Respondents, and the Ebokwo people of Usumotong, who are represented by the Appellant. Both communities are in Abi Local Government Area of Cross River State. The dispute between the two Communities in 1938 and 1940 over the said parcel of land resulted in the institution of Suit Nos. E/15/1938 and E/20/1938, which were consolidated. However none of the judgments gave title to either of the parties to those suits.

In 2006, another dispute arose over the boundaries of the two Communities on the disputed area. Although the

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boundary dispute did not escalate to the level of hostilities, the Governor of Cross River State at the material time, Mr. Donald Duke, concerned about the crisis and guided by the need for a peaceful and harmonious co-existence of the two Communities, decided to wade into the matter with view to resolving it amicably. He set up a Judicial Commission of Inquiry to among other things ‘ascertain? the respective claims of the two communities on the said, land’.

The Commission of Inquiry concluded that the land was jointly owned and went on to recommend that ‘the entire land … should be divided into three equal parts. The middle of these three parts should be declared a buff and acquired by the State Government without any compensation whatsoever. The portion close to Ediba should be allotted to and owned by Ediba (now 1st to 5th Respondents), while the portion close to Usumutong should be allotted to and owned by Usumutong’ (now Appellants).

?The Cross River State Government subsequently published a White Paper titled Cross River State Official Document No. 9 of 2007 on the report of the Commission of Inquiry in which it accepted the above

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recommendation of the Commission of Inquiry. The 1st to 5th Respondents who were aggrieved by that decision, filed Suit No. HC/455/2007 against the Cross River State Government for an order of certiorari to quash the White Paper. But the suit was dismissed as statute barred.

In 2008, the 1st to 5th Respondents (Enusokwe and Ezono indigenes of the Ediba community) filed suit No. HUG/18/2008 against the Appellant’s Ebokwo Community, for a declaration of title to the disputed land. While the said Suit was still pending at the High Court of Cross River State, the Cross River State Government sought to implement its decision, contained in the White Paper on the Commission of Inquiry Report by acquiring the disputed land without paying compensation and to partition the land.

The 1st to 5th Respondents consequently filed Suit No HC/348/2011 challenging the constitutionality of that decision in view of the fundamental rights provisions in Sections 43 and 44 of the 1999 Constitution which prohibit compulsory acquisition without compensation.

Upon being served with the originating motion in the suit leading to this appeal, the Appellant herein, who was

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