Ibum Olumba & Ors V. The Registered Trustee Of The Brotherhood Of The Cross & Star (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Lead Ruling)

The Registered Trustees of the Brotherhood of the cross and star (Respondent/Plaintiff) claim they are the only legal body authorized to administer, manage, dispose off or deal with all property of the Brotherhood of the Cross and Star every where in the world but that (1) Mr. Ibum Olumba Obu (2) All states Estates Limited and (3) Eno Etuk Esq. (Defendants/appellants) claim otherwise.

That the defendants/appellants have continually and continuously entered into and taken possession of the property belonging to the brotherhood through thuggery and illegal use of police, sheer stealing and falsification of documents whereupon, the Registered Trustees took out an originating summons supported by affidavit and documentary exhibits before the High Court of Justice, Calabar, Cross River State on 2nd April, 2009 in suit No. HC/111/2009 seeking that the following questions be determined, namely:

“1. Whether the Trustees of the plaintiff are not the ones solely entitled to manage and run the affairs of the plaintiff in anything relating to administration, to the property and otherwise of the plaintiff by virtue of the trustees’ law.

2. Whether the defendants have a right to meddle/obstruct continuously the administration of the landed property of the plaintiff and continuously and continually receive rents on same and take out actions that are vexatious and hamper the smooth running of the property of Brotherhood of the Cross and Star.
3. Whether the defendants having continued in their illegal activity cannot be ordered to render accounts on all the property which they are illegally using the 2nd defendant to manage pretending to be owners of the property of the Brotherhood of the cross and Star.”

They sought the following reliefs against the three defendants/Appellants:

“1. A DECLARATION that the plaintiff is the sole body imbued with the power to deal with, administer and or deal otherwise with the property of the brotherhood of the cross and star in accordance with the memorandum setting it up.

2. A DECLARATION that the continued holding over and the interference of the defendants in the process of the management and care of the properties of the plaintiff is illegal a breach of the law.
3. An order that the defendants render accounts of their illegal collections on the property since 14th December, 2001.
4. An order restraining the Defendants from any further acts of trespass either by themselves, their agents assigns and cohorts or by anyone whatsoever acting or purporting to act on their behalf.”

Upon service a conditional memo of appearance was entered on behalf of the three defendants by Itim Effiom Esq. of counsel on 6th April, 2009 followed by a Notice of preliminary objection filed on 29th April, 2009 that the summons be struck out on the following grounds:

“1. Misrepresentation and illegal use of the claimant’s name.

2. Lack of cause of action
3. Abuse of Court process
4. Lack of jurisdiction.”

Affidavits and counter affidavits trailed the preliminary objection. Some were allowed but others struck out for one reason or the other. Counsel adopted their written addresses on 13th July, 2009. The learned trial Judge delivered ruling holding that not only could the Claimants institute the originating summons but the Court had the jurisdiction to entertain and determine the questions in controversy. Being aggrieved the defendants/appellants filed a joint Notice of Appeal containing five grounds on 27th July, 2009 seeking the following reliefs from the Court of Appeal:

“(a) Setting aside the decision of the tower Court.

(b) Upholding the preliminary objection of the defendants/appellants that the inchoate originating summons of the claimant/Respondent full of misrepresentation, is also lacking in merit; an unclad duplicity of suit and a gross abuse of the Court process.

(c) Cost in the circumstances.”

The appellants/defendants’ brief of argument was filed on 16th April, 2010 and served on the Respondent/plaintiff who is yet to file a brief. However, on 15th July, 2011 the respondent/plaintiff filed a motion on Notice supported by affidavit and, documentary exhibits “A”-“E” praying for the following reliefs:

“1. An order striking out this appeal.