Chief Orok. I. Ironbar & Ors V. Federal Mortgage Finance (2008)

LawGlobal-Hub Lead Judgment Report

THERESA. N. ORJI-ABADUA, J.C.A.

The proceeding leading to this appeal was first initiated on the 24th March, 1994 at the High Court of Cross River State of Nigeria, Holden at Calabar presided over by Hon. Justice E. E. Ita, wherein the Plaintiff, suing as next of kin and/or agent and or representative of late Chief Orok Ita Orok as per the endorsement on his statement of claim, sought the following reliefs against the Defendant:

“(i) Injunction restraining the Defendant, its agents, servants and/or assigns from meddling by way of sale, take over or howsoever, with Late Chief Orok Ita Orok’s property at Odukpani Road, Calabar registered as 96/96/62 of the Lands Registry, Calabar.

(ii) An order that the Plaintiff has already cleared Late Chief Orok Ita Orok’s indebtedness to the Defendant through all the lodgments made since the Late Chief’s demise.

(iii) N650,000.00 damages for embarrassing the Plaintiff by sending someone to value/inspect the said property for sale on several days including 23/3/94 while same was occupied by other parties who are tenants and relations of the Plaintiff”.

At the subsequent trial, the Plaintiff alone testified for himself and tendered 16 Exhibits. The Defendant for its part called no witness but rested its case on that case of the Plaintiff.

The Plaintiff’s case briefly, is that his Late father, Chief Orok Ita Orok, who died, in April 1985 was the customer of the Defendant. He obtained a loan from the Defendant, and, as at the time he died, the amount outstanding as his indebtedness was N18, 802.66K. At the demise of Chief Orok I. Orok, the Plaintiff undertook to defray his said late father’s indebtedness to the Defendant. However, to his consternation, various conflicting statements of account were forwarded to him by the Defendant which he promptly protested against. He paid over N40,000 to the Defendant from the date of his father’s demise to the date the suit was fixed for hearing at the lower Court. He claimed he had overpaid the Defendant.

At the conclusion of the hearing, the learned trial Judge, after a careful and meticulous review of the Plaintiff’s evidence before it, and, the eloquent submissions of learned Counsel for the parties found for the Defendant and dismissed the Plaintiff’s claims.

The Court then pronounced thus:

“A proper plaintiff must be before that Court before the Court can exercise jurisdiction. Where there is no proper Plaintiff before the Court, the case is not properly constituted ….. An improperly constituted action is incompetent and liable to be dismissed. This action is accordingly dismissed.”

Dissatisfied with the said judgment, the Plaintiff lodged an appeal against the same to this Court. I shall hereinafter refer to the Plaintiff as the Appellant and the Defendant as the Respondent in this judgment.

Five grounds of appeal were filed by the Appellant against the said decision of the High Court of Cross River State. Needless reproducing the said grounds in this judgment, but, suffice it to state that the Appellant, pursuant to the Rules of this Court, filed his Brief of Argument in which two issues were identified for the determination of this Court. These are as follows:

“1. Whether the Appellant had the capacity and competence to sue the Respondent regarding the account and/or property of Late Chief Orok Ita Orok.

2. Whether the Respondent having dealt with the Appellant on Late Chief Orok Ita Orok’s account and caused him to take steps to his detriment which steps the Respondent did not deny, the trial Court was entitled to find/declare such relationship unlawful”.

The Respondent for its own part, submitted only one issue in its Brief of Argument as arising in this appeal for determination. It is couched thus: