Chief Akpan Akwa Udo Idiong & Ors. V. Chief Edet Udo Idiong & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

The action which gave rise to the instant appeal was commenced at the District Court Ono, holden at Nsaoso, Ibiono Local Government Area, Akwa Ibom State. It was commenced on 7th July 2004 and registered/ numbered as Suit No. CDC/19/2004. The appellants were the plaintiffs and the action was in a representative capacity against the respondents as defendants also in a representative capacity. The reliefs claimed in the main by the plaintiffs are reproduced below:

“CLAIM 1: For court’s order on defendants that henceforth the plaintiffs have dissociated themselves from sharing their great grand father’s landed property on grounds as follows: – Their great grand father named above had left instruction that his lands should neither be sold nor shared for ever and ever (2) 3rd to 5th defendants are not original sons of Obong Udo Idiong (3) Last year in an attempt to share the lands they excluded Late Udo Ikpe’s children (4) The family head (1st defendant) is up till now living in Lagos; as such there is no family meeting to decide on the proper thing to do with the lands. Cause of action arose since 2003.”(pp. 9 – 10 of the record)

The facts of the case as garnered from the printed record are as follows. Chief Obong Udo Idiong – great grandfather of the parties died in 1942. Before his death, he summoned all his children and told them that his vast landed properties should remain unshared forever and placed a curse on whoever breaches this directive. After his death in 1942, the following successors became the head of family. (i) Akwa Udo Idiong (ii) Udo Udo Idiong (iii) Ukpong Udo Idiong. (iv) Essien Udo Idiong and (v) Edet Udo Idiong who is the current head of the family and for the first time, the issue of sharing arose, hence the instant action and his being made the first defendant.

In their defence, the first defendant stated how the issue of sharing arose in 2003 and how they conducted rituals and appeased the spirit of their great grand father to remove, revoke or withdraw the curse supposedly placed on sharing of the land on a permanent basis, instead of only the products therefrom. 1st defendant stated that both the 1st and 3rd plaintiffs participated fully in their ancestor’s appeasement ceremony. Thereafter, the landed properties were partitioned/shared into thirteen since there were thirteen family member groupings involved. After the sharing/partitioning, each father took effective possession of his portion and cultivated it.

The case which proceeded to hearing was concluded after the trial court heard the parties and their witnesses. In its judgment delivered on 16th December, 2004 the trial court dismissed the claim in the following terms:

“From the evidence before the court this court is not satisfied with the claim put forward by the plaintiffs. Defendants are therefore not liable to the claims. Plaintiffs claims are hereby dismissed without costs.”(p. 59 of the record). The plaintiffs being aggrieved appealed against the said judgment to the Chief Magistrate Court, Ibiono Ibom, Akwa Ibom State. After hearing the parties, the said court in its judgment delivered on 25th October, 2006 allowed the appeal by the plaintiffs and set aside the judgment of the trial court. (P. 100 of the record) This time around, the defendants were dissatisfied and they appealed to the High Court, Akwa Ibom State, Itu Judicial Division in the exercise of its appellate jurisdiction. Upon the completion of hearing of the appeal matter, the said court in its judgment delivered on 20th November, 2008 allowed the appeal, set aside the decision of the Chief Magistrate Court and restored/affirmed the previous judgment of the District Court. (P. 145 of the record).

Again, the plaintiffs were still dissatisfied the second time around. They lodged the instant appeal to this Court; vide their notice of appeal filed on 17th February, 2009 containing four grounds of appeal. I shall hereinafter in this judgment refer to the plaintiffs before the District Court, Ono as the appellants and the defendants thereat as the respondents.

In compliance with the rules of this Court, the appellants through their learned counsel filed their brief of argument. The said appellants’ brief was dated 29/03/2010 and filed on 01/04/2010. It was prepared by Ekong Ekong Esq. In the said brief, learned appellants’ counsel formulated three issues for determination in this appeal. The issues are as follows:

“i) Whether the learned appellate judge was right and the judgment sustainable when she failed and/or neglected to rule on none of the four grounds of appeal canvassed by the parties in the lower court.

ii) Whether the judgment of the learned appellate judge can be allowed to stand when she abandoned the judgment of the learned Chief Magistrate sitting at Ibiono Ibom that was the subject of appeal and suo motu considered the judgment of the District Court and section 10 of the Customary Court Law Cap. 40 vol. 2 Laws of Akwa Ibom State 2000 and anchored her judgment on that without hearing parties on that issue.

iii) Whether the judgment of the appellate judge can be classified as a judgment in view of the Supreme Court decisions in OKULATE V. AWOSANYA (2002) 74 LRCN 167 @ PAGES 188 FH AND 189 A AND OGBA V. ONWUZO (2005) 131 LRCN 2448 @ 2463 FU and whether an order for re-hearing of the appeal would not be proper in the circumstances.”

On 1st December, 2010 this Court granted the application brought by way of motion on notice filed on 30/09/2010 by the appellants, praying that the appeal be heard based on the appellants’ brief of argument alone, since the respondents failed or neglected to file their respondents’ brief at all. Hence, on 12th May, 2011 upon being satisfied with the proof of service placed before us by the registry of this Court, we proceeded with the hearing of the appeal matter.

With regard to the first issue, learned counsel for the appellants argued, “that an appeal deals with the complaints of the appellant against a judgment” and as such, parties are tied to the grounds or issues raised and canvassed by them and the appellate court is obliged to rule on the issues or grounds as the case may have been, “presented to it for adjudication.” Additionally that “a fundamental principle of our adversary system of administration of justice is the role of a judge as an umpire. On this issue we were referred to pages 132 – 145 of the record containing the judgment of the court below with the argument, “that the learned appellate judge merely reproduced the submissions of learned counsel for the parties but failed to rule on any of the grounds of appeal.” According to learned counsel, the judgment cannot be tied to any of the grounds of appeal and that this has “occasioned a fundamental breach of the principles of fair trial and fair hearing and such a judgment cannot be allowed to stand.”