Ekpenyong Ita Ekpenyong V. Joseph Ibok Effanga & Anor (2009)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

This is an appeal against the judgment of the High Court of Cross River State, Calabar Division presided over by Ita J. delivered on 30th January, 2006.

The Plaintiff now 1st Respondent commenced this action by Writ of Summons dated 5th December, 1989 in a representative capacity wherein he sued Affiong Ekpenyong who later died and was substituted by her attorney Ekpenyong Ita Ekpenyong and the Administrator of Cross River State. In paragraph 22 of the Further Amended Statement of Claim he claimed the following reliefs against the defendants jointly and severally:-

1. Declaration of title to all that piece and parcel of land situate at No. 15 Abasi Obori, Calabar, shown and edged red on plan No. JEJ/CA/2166.
2. A declaration that the said occupation of the said property by Affiong Ekpenyong is against the right and interests of the plaintiff and its (sic) co-beneficiaries, whilst under the management and control by the 2nd Defendant as well as wrongful and illegal.
3. An order of eviction against the 1st defendant from the property aforementioned.
4. An order of perpetual injunction restraining the 1st defendant either by himself or her agents, assigns, privies or successors in title from further entry into, or use however of the land which is the subject matter of this action and the bonafide property of the plaintiff and his co-beneficiaries.

After the exchange of pleadings, the parties called witnesses who testified and learned counsel filed written addresses. In a reserved judgment delivered on 30th January, 2006, judgment was entered in favour of the Plaintiff in terms of his further amended Statement of Claim. Being dissatisfied with the judgment of the lower court, the 1st Defendant now Appellant appealed to this Court in his Notice of Appeal dated 27/2/2007 containing five grounds of appeal (see pages 244 – 247 of the records).

The Appellant raised the following four issues in the appellant’s brief:-

1. Whether the judgment of the learned trial Judge is not against the weight of evidence.
2. Whether the learned trial Judge did not act without jurisdiction when he granted reliefs not claimed by the plaintiff and when the plaintiff’s representative capacity was not proved.
3. Whether the learned trial Judge did not misdirect himself when he found and held that the 1st defendant challenged the title of his landlord, the plaintiff, by representing himself to Effanga Offiong family as the owner of No. 15, Abasi Obori Street, Calabar, now No. 14.
4. Whether deceit is not a fact that should be proved beyond reasonable doubt and whether the learned trial Judge was not wrong when he held that Exh. ‘K’ was obtained by deceit.

The 1st Respondent raised objection on the competence of grounds 1, 4 and 5 in the Notice of Appeal. He said that Ground 1 which is an omnibus ground is only suitable in criminal cases but not applicable to civil cases and that ground 4 is incompetent as it is contrary to Order 6 Rule 2(2) Court of Appeal Rules, 2007 because the Appellant merely quoted a portion of the judgment without showing how the learned trial Judge misdirected himself. Learned counsel also alleged that ground 5 is incompetent because it does not relate to the decision of the Court both does it directly challenge the validity of the ratio decidendi of the judgment of the lower Court and that the Appellant raised a fresh point on appeal without obtaining leave of this Court. He urged that the grounds should be struck out together with the issues distilled from them.

The 1st Respondent also distilled five issues for determination. The issues are:

1. Whether the judgment of the lower court was against the weight of evidence.
2. Whether the learned trial Judge granted reliefs not claimed by the 1st Respondent (Plaintiff).
3. Whether the 1st Respondent (Plaintiff) could sue in a representative capacity.
4. Whether the learned trial Judge was correct when he held that the Appellant (1st Defendant) had challenged the title of his landlord, the 1st Respondent (Plaintiff).
5. Whether Exh. ‘K’ tendered by the Appellant, was rightly held to have been obtained by deceit.

The 2nd Respondent’s brief was deemed filed on 20/10/08 and raised the following lone issue, i.e.

1. Whether the Appellant has proved title to the land in dispute.

The Appellant filed a Reply Brief supposedly in answer to the Preliminary Objection raised by the 1st Respondent. He argued that the preliminary objection is misconceived and urged this court to overrule it.

Grounds 1, 4 and 5 in respect of which the preliminary objection has been raised are reproduced as follows;

“1. the learned trial Judge erred in law when he on 30th January, 2006 proceeded to deliver judgment in favour of the plaintiff which was completely against the weight of evidence thereby making the judgment unreasonable, unwarranted and altogether purported.

4. Misdirection

The learned trial Judge misdirected himself in law when he held thus:

“1st defendant ought to have notified the 2nd defendant to go to Effanga Offiong family and not for him to present himself to Effanga Offiong family as the owner of the land to be dealt with as such … In this instance, 1st defendant challenged the title of his landlord, the plaintiff, by presenting himself to Effanga Offiong family as the owner of No. 15 Abasi Obori Street, Calabar now No. 14 and by that deceit procured Exh. ‘K’ granting the land to him. Exhibit ‘K’ in that light cannot be allowed to stand at law being a product of deceit and misrepresentation. It must be struck down. In consequence therefore, I hereby declare Exh. ‘K’ a lease agreement between Effanga Offiong family and 1st defendant dated 15th January, 1978 null and void and of no effect whatsoever.” And this misdirection has occasioned grave miscarriage of justice.

Particulars of Misdirection