Chief Asiya Ita Effiom Otu Ekong & Ors. V. Benson Okpala (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

The plaintiffs have appealed to this Court against the judgment of Nkemena J. (High Court, Calabar) whereby he dismissed with 200 guineas costs the action which the plaintiffs had instituted against the defendant, now respondent, and in respect of which the writ of summons was endorsed as follows:-

“(a) The plaintiffs’ claim against the defendant is for a declaration that a purported sale of the plaintiffs’ family land by the late Chief Otu Effiom Otu Ekong II to the defendant contained in a purported conveyance dated 30th June, 1955 is invalid.

(b) An order setting aside such a conveyance.”

Pleadings were ordered and filed in the action and from the pleadings it was manifest that the plaintiffs were suing as representatives of the “family and descendants of Etubom Effiom Otu Ekong (deceased).” The plaintiffs’ statement of claim avers in substance that the late Chief Otu Effiom Otu Ekong II had sold part of the family land to the defendant by virtue of the conveyance referred to in the writ of summons and paragraphs 5 and 6 of the statement of claim read as follows:-

“5. The said Chief Otu Effiom Otu Ekong II in selling the land aforesaid acted in his personal capacity and without the authority or consultation of the other members of the family of Etubom Effiom Otu Ekong.

6. Under Efik native law and custom all the descendants of the said Etubom Effiom Otu Ekong are joint owners of the land in dispute with Chief Otu Effiom Otu Ekong II who purported to sell it to the defendant.”

In answer to the plaintiffs’ statement of claim the defendant filed a statement of defence. In that statement of defence he denied the allegations contained in paragraphs 5 and 6 of the statement of claim and stated in substance that the late Chief Otu Effiom Otu Ekong II had openly asserted rights ofindividual ownership on the land concerned and that he had bought from him on that basis.

The learned trial judge took evidence at the hearing of the case. After the 2nd plantiffs’ witness, by name Israel Mato, had completed his evidence in court, learned counsel appearing for the plaintiffs applied to call the second plaintiff, Madam Sarah Effiom Otu Ekong, to testify. The notes made by the learned judge on this point read as follows:-

“At this stage Mr. Bassey applies to call 2nd plaintiff to give evidence, as to what transpired between herself and Chief Otu Ekong II and whether her consent was obtained when the land was sold to the defendant.

Mr. Aseme: submits that if that was the evidence it had been covered by 1st and 3rd plaintiffs. It is belated.

Ruling:-

The main issue in this case is whether the late Chief Otu Ekong II had power to alienate family land to the defendant without the consent of the family of which he was the head. The action is a representative action and 1st and 3rd plaintiffs gave evidence that such consent was never obtained.

If the 2nd plaintiff would have testified before me she should have been called to give evidence before witnesses for the plaintiffs were called. She should not be in court to listen to other plaintiffs and their witnesses testify and then be called to round up and polish such evidence that was not properly given. I would have granted the application if only the 1st and 3rd plaintiffs were called first and the 2nd plaintiff called to testify after they had testified. Order 42, rules 1, 2 and 3 of the High Court Rules set down the procedure to be adopted by a person on whom the burden of proof rests. That person or those persons must first state their case before adducing evidence or calling witnesses. To depart from the rules the permission of the court has to be sought and in cases where witnesses give formal evidence or such expert evidence as will not conflict with the issues between the parties permission is normally granted.

In the present case no such permission was sought until at a later stage. This is medicine after death. I shall refuse the application.”