Government of Cross River State & Ors. V. Okpa Okpekor Assam (2007)

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NWALI SYLVESTER NGWUTA, J.C.A.

This is an appeal against the judgment of Edem, J. of the High Court of Justice, Cross River State, Ikom Judicial Division in suit No. HM/10/2/97. The judgment was delivered on 18/11/98. There is an earlier ruling of the trial court delivered in 20/4/98. The original parties before the lower court are set out below:

Chief Felix Njang Assam – Plaintiff

And

1. The Government of Cross River State of Nigeria
2. Attorney-General and Commissioner for Justice, Cross River State
3. E. O. Erim – Defendants
4. His Royal Highness, Minen O. Ndoma-Egba

In a motion headed “motion ex parte” dated 18/9/2002 and filed in the lower court on 18/9/2002 there was an alteration in the number of parties on each side.

The parties appeared as follows:

1. The Govt. of Cross River State
2. Attorney-General and Commissioner for Justice, Cross River State
3. Mr. E. O. Erim – Appellants/Applicants
4. His Royal Highness, Minen Ndoma-Egba
5. Chief Ogar Ntui
6. Christopher Odu Amba

(For and on behalf of Agbokim Mbabor

And

1. Chief Felix Njang Assam
2. Mr. Omang Ntui – Respondents/Applicants
3. The Independent National Electoral Commission, Calabar
4. Okpa Okpekor Assam

In the shoddily compiled records of the lower court, there is no indication that the motion was argued and/or granted. However, on 18/2/03 Eneji, J. did granted an ex parte application and ordered thus:

“1. That Okpa Okpakor is hereby substituted as the respondent to prosecute the appeal already filed for and on behalf of late Chief Njang Assam family.

2. All subsequent court processes in connection with this case, is (sic) hereby ordered to be recorded to reflect Okpa Okpekor Assam as the respondent.
3. This miscellaneous application is accordingly determined and disposed.”

I shall re-visit this order later in the judgment. I have set out the three sets of parties in the same case to demonstrate the confusion arising from the records of the lower court. Apart from the order replacing the respondent with Okpa Okpekor as the respondent, there was no order altering the parties before the lower court, yet there where additions to the parties. It is to be noted that the motion purportedly granted by Eneji, J. was for joinder of a party, and not for the substitution granted. Also the purported representative capacity of the new respondent as well as the order for substitution were made ex-gratia by Eneji, J.

I find it surprising that none of learned counsel for the parties adverted his mind to the alteration of the parties without leave of court. The order for substitution granted in place of prayer for joinder and the capacity of the new respondent expressed by the court were made suo motu in the ruling delivered on 18/2/2003, by Eneji, J. Learned counsel for the parties did not consider it important that the trial court made an order for substitution for the purpose of prosecuting appeal on 18/2/2003 in respect of its judgment of 11/9/99. Above are serious issues of law which should have engaged the attention of learned counsel for the parties. Maybe learned counsel did not bother to read the entire records of proceedings of the lower court.

Having set out the above anomalies in the records, I shall now proceed with the appeal.

By what purports to be an originating summons the plaintiff in the lower court claimed the following reliefs against the defendants:-