Bassey Ekpenyong Asuquo V. Etinyin Maurice Edem Eyo (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the Ikot Nakanda High court in suit No HCA/19/2008. Before the said High court the plaintiffs claimed against the defendant in representative capacity for as follows:-

(a) A declaration that the defendant is no longer fit to be a village head.

(b) An order deposing the defendant from the office of the village headship.

(c) The sum of N120,000.00 damages.

The defence counsel filed a preliminary objection to the suit.

The trial court upheld the defendants’ objection and struck-out the plaintiff’s substantive suit No. HCA/19/2008. The plaintiff therein therefore filed this appeal.

Before this court the appellant has filed appellant brief of argument raising the following issues for the determination of the appeal.

1. Whether the learned trial judge had a right to approach to the substantive suit HCA/19/2008 which the trial judge struck-out because he had struck-out an earlier incompetent suit HCA/2/2005 for lack of jurisdiction.
2. Whether the trial judge properly directed himself as to what constitutes estoppel per rem judicata.
3. Whether the trial judge has no jurisdiction simpliciter in chieftaincy matters, if he has.
4. Whether the learned trial Judge considered the competency of the substantive suit HCA/19/2009 which clothes the court with jurisdiction.

On the other hand in the Respondent’s brief of argument the following issues have been raised for determination;

i. Whether the previous ruling by the High Court in suit No. HCA/2/2005 operates to create an estoppel against this present action by the appellant. (This covers appellant’s issues 1 and 2 and all his grounds of appeal).

ii. Assuming there is no estoppel, whether the appellant has disclosed his locus standi to maintain this action. This covers appellant’s issues 3 and 4).

It is to be noted that in the Respondent’s brief of argument a preliminary objection has been raised. It is to the effect that of the three grounds of appeal in the appellant’s Notice of Appeal are all incompetent in law because no particulars have been provided for the errors of law alleged in those grounds of appeal contrary to the very clear and mandatory provisions of order 6 Rule 2(2) of the court of Appeal Rules of 2007.

Thus in apex court in the case of GLOBAL TRANS OCCEANICO S. A. VS. FREE ENT. NIG LTD (2001) FWLR (pt 40) 1706; 1718 para E-F the apex court made it clear that any ground of appeal which alleges error in law or misdirection contravenes the provisions of order 3 Rule 2(2) of the court of Appeal Rules 1981 (which is in pari material with Order 6 Rule 2(2) of the Court of Appeal Rules 2007 and is to that extent incompetent and liable to be struck out. In INTRO SHIPPING LTD vs. LOGOS TRADING N. V. (2001) FWLR (pt 71) 1706; 1711 made it clear in the following words;-

“It is also well settled that a ground of appeal which alleges error of law but fails to set out the particulars of such errors is incompetent in law”.