Etowa Enang & Ors V. Fidelis Ikor Adu (1981)

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NNAMANI, J.S.C.

In February, 1970, the plaintiffs/respondents (hereinafter known as the respondents), filed a suit in the Calabar High Court claiming against the defendants/appellants (hereinafter known as the appellants) as follows:-

“1. Declaration of title to those pieces or parcels of lands known as and called “Mgbudu”, “Lebei”, “Ipenele” situate in Adadama in Obubra Division. The said pieces or parcels of lands in dispute will be completely described and delineated in a plan to be filed with the Statement of Claim.

2. 200 (Two Hundred Pounds) damages for Trespass to the said lands.
3. Injunction to restrain the defendants, and/or their servants and/or agents from further trespassing into the said lands and/or leasing the said lands to any tenants.”

Pleadings were ordered, duly filed and delivered. Both parties also filed plans of the lands in dispute which plans were received in evidence in the trial court. The plans indicated that there was really no dispute as to the identity of the lands in dispute. At the trial, both parties gave evidence and called several witnesses. It is pertinent, as will appear later in this judgment, to mention the representative character of this suit. The application of Fidelis Ikor Adu for an order of court to enable him sue in a representative capacity was strenuously resisted by the appellants, but on 20th May, 1970, the following order was made by the High Court, Calabar.

“Order: Application and order granted to enable the plaintiff to sue in a representative capacity for the benefit of and on behalf of all members of the Ba-Ikeghe family so interested without prejudice to the findings of fact of the trial court after pleadings have been filed and evidence adduced in the Suit”

(Underlining mine).It is not disputed that where there is a challenge to the capacity and/or authority of the plaintiff to sue in a representative capacity and the parties have joined issue on it in their pleadings, it is a matter to be resolved by the trial judge after hearing evidence. See Jeremiah Nsima v. Ole Nnaji and Ors. (1961) All NLR 441 at 443. At the end of the trial, this matter of representation of the Ba-Ikeghe family by Fidelis Ikor Adu, was not directly dealt with by the learned trial Chief Judge, but he seems to have disposed of it in his findings (contrary to the contentions of the appellants), that there was a Ba-Ikeghe family (not Ba-Ikeghe House) to which the appellants do not belong. In his judgment he also stated that “the Plaintiff is the Head of the Ba-Ikeghe family of Adadama, and sued for himself and as representing the entire members of the Ba-Ikeghe family.” The learned trial Chief Judge, Kooffrey, CJ., made several findings of fact in favour of the respondents. He granted them the declaration of title sought and N100 nominal damages for trespass. He refused the claim for injunction. Both parties appealed to the Federal Court of Appeal although it is part of the contention of the appellants in this court that no cross-appeal was in fact filed by the respondents. In a reserved judgment dated 1st August, 1979, the learned Justices of the Federal Court of Appeal (Ebosie, kazeem, JJCA and Douglas JCA (as he then was), dismissed the appeal of the appellants. They allowed the cross appeal and granted an injunction against the appellants. It is from that judgment that the appellants have appealed to this court. They filed grounds of appeal which I shall deal with in the course of this judgment. During the argument of the appeal in this court, learned counsel for the appellants abandoned Grounds 4 and 5 of the Grounds of appeal which were accordingly struck out. He argued grounds 1 and 2 and relied on his brief of argument with respect to the other grounds of appeal. We did not call on learned counsel for the respondents to reply.

In his brief of argument learned counsel for the appellants set down the issues arising in the appeal (which cover all his grounds of appeal), as follows:-

“(i) Whether the findings of the High Court based on the pleadings and evidence that the plaintiff is the head of Ba-Ikeghe (Royal) family is irrelevant in the determination of the Suit as determined by the Federal Court of Appeal.

(ii) Whether the Federal Court of Appeal is bound by the pleadings to the extent that it should not treat as irrelevant issues which the parties and the High Court have treated as relevant.

(iii) Whether it is an issue or not that the plaintiff had become the head of Ba-Ikeghe (Royal) family so as to possess the disputed parcels of land (as pleaded by the plaintiff and traversed by the defendants); and if it is an issue whether there was admissible evidence for the High Court to find that Plaintiff was such head.

(iv) Whether the findings of the take over of the headship of Ba-Ikeghe (Royal) family by the plaintiff from the 10th Defendant (Regent) dealt with a Chieftaincy issue over which the High Court had no jurisdiction.

(v) Whether the High Court and/or the Federal Court of Appeal were entitled to look at and consider the evidence of Chief Ezong Iyeme in Exhibit 4 to see how it materially differed from evidence of his alleged successor as established by the cross-examination of the Plaintiff, and also whether condition (a) (and) provisos laid down in Section 34(1) of the Evidence Law applicable was/were satisfied.

(vi) Whether there is defect in plaintiff’s root of title and whether his traditional evidence is inconclusive so as to oblige the High Court and/or Federal Court of Appeal to consider other acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the plaintiff was exclusive owner.

(vii) Whether the question of inheritance through the mother’s side (maternal or matrilineal succession) which the parties and High Court relied upon had no part to play in the case as determined by the Federal Court of Appeal.