The Plaintiffs who are the respondents in this appeal claimed from the defendants (now the appellants) a sum of N10,000n as damages for trespass at the High Court of South Eastern State holden at Calabar. The trespass was said to have been committed on a parcel of land at Ekpo Abasi Street, Calabar, as shown on the survey Plan No. ESP/214/(LD) of 24th July, 1975. The respondents also asked for perpetual injunction to restrain the appellants, their servants, agents and/or assigns, from repeating or continuing the acts of trespass complained of.
Pleadings were ordered and dully filed; and therein it was averred by the respondents that the land in dispute was situated at Efut Abua in the Calabar Division of the then South-Eastern State of Nigeria.
The respondents claimed that the said parcel of land was sold to one Bernard Eyo Boko alias Okonko Edet Oboko in 1938 by Muri Ekpo Effiom Oboko of Efut Abua as per a Purchase Receipt dated 12th November, 1938 which was tendered as Exch.2. Apart from the Muri, the Purchase Receipt was thumb printed or signed by four other Chiefs from Efut Abua namely Effiong Edem Ambo Ene Asuquo. In 1942, by a Deed of Conveyance dated 18th November, 1942, the sale was confirmed by those other four Chiefs all of Efut Abua of Calabar, for themselves and as representing the whole family of Efut Abua or household as per Exh.3. The land was subsequently sold by Okonko Edet Oboko to Bassey Eyo James of Efut Abua of Calabar, for themselves and as representing the whole family of Efut Abua or household as per Exh. 3. The land was subsequently sold by Okonko Edet Oboko to Bassey Eyo James of Efut Abua the father of the respondents in 1962, who cultivated it and planted economic trees thereon. The land was surveyed in 1961 as per the Survey Plan Exh. 1; and a Deed of Conveyance dated 16th March, 1962 was made in favour of the respondent's father as per Exh. 4 which was duly registered. Thus the respondents and their predecessor-in-title remained in possession of the land in dispute and exercised thereon acts of ownership by cultivating it until 1974.
It is significant that one Chief Xavier Edem Edet Eyo (P.W.2) who knew about the transaction said under cross-examination as follows:
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"Muri Ekpo Effiom Oboko was an Efut Abua man. My late mother was also an Efut Abua woman. All the people who signed the receipt are Efut Abua people. The land was sold on behalf of Efut Abua because the land belong to Efut Abua under a Declaration of Title in Suit No. 84/22/23 in the Supreme Court". (The italics are mine)
In the meantime, Muri Ekpo Effiom Oboko of Efut Abua who originally sold the land in 1938 died; and he was succeeded by Muri Edem Edet who, leased the said land to the appellants as per Deed of Lease dated 29th October, 1974 - Exh. 5. He did so as the Muri Munene and clan Head of the Efuts for himself and as representing the Efut Abua and Efut Okondo Combined Council for a period of 99 years. The appellants have since erected a building on the land.
D.W. 3 who was the Muri Munene at the time of the trial in 1978 testified for the appellants and said that the whole of Efut land was controlled by the Combined Council of Efut of which the Muri was its Head; and that the Combined Council was that of Efut (apparently meaning Abua) and Ekondo. He testified further that if a parcel of land was to be sold in Efut, it would be sold by the Combined Council of Efut and Okondo; and that no one else apart from the Combined Council had any right or authority to sell Efut Land. When this witness was cross-examined by learned Counsel for the respondents, he admitted that he knew that in 1935 one Henry Cobham sued three persons at the Native Court of Calabar in respect of a parcel of land in Efut Okondo claiming joint ownership of the land. See Exh. 6 which is the proceedings and judgement in Suit No. 309/35 in the Native Court of Calabar between Henry Cobham as Plaintiff and Abasi Okon Edem Anating, Effiong Ededem Okon Edem Anating, and Edem -Odo Okon Edet Anating, for themselves and on behalf of Edet Okondo of Calabar District, as Defendants. The claim was for a declaration that the plaintiff was a joint owner of all parcels of land belonging to Efut Okondo in accordance with Supreme Court judgement dated 19/6/31 and that the right, title, and interest of each party into and over the said land were in every respect the same. The claim was admitted by the 1st defendant, but opposed by the 2nd and 3rd defendants but judgement was eventually entered for the plaintiff for the declaration sought.
The trial judge as said dismissed the respondent's claim, whereupon they appealed to the Court of Appeal where their appeal was allowed and the High Court judgement was set aside and their reliefs were granted. The appellants appealed to the Supreme Court.
