Ndabo Eyo Nyong Effiom Duke & Anor V. Hrh Muri Okokon Edet Edem Ambo & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The High Court of Justice of Cross River State holden at Calabar presided over by Ogar, J., entered judgment in favour of the Claimants/applicants/respondents on 27th day of September, 2012 over a piece of land situate at No.19/20 Abitu Avenue, Calabar and made the following orders:

“In the result I find and hold that the claimants’ claim succeeds. I therefore enter judgment for the claimants and against the defendants in the following terms:

1. A declaration that the claimants are entitled to a statutory right of occupancy over the piece or parcel of land situate and lying at No. 19/20/Abitu Avenue, Calabar, same being Efut Communal land.
2. The conveyance made the 5th day of April, 1974 between Princess Uduak Duke Ephraim as Head of King Duke family, Calabar and others in favour of Mrs. Martha Anita, and registered as No. 30 at page 30 in volume 62 of the Lands Registry in the office at Calabar, in respect of the said land delineated in Survey plan No. RIM/1668 dated 28th February, 1974, is void and is hereby set aside.
3. Having not led evidence as to any physical damage resulting from the defendants’ acts’ of trespass, I think the claimants are entitled to only nominal damages which I assess and fix at N500, 000.00 (Five Hundred Thousand Naira) only.
4. The defendants are restrained either by themselves, their heirs, agents, servants and/or privies from interfering or further interfering with the claimants’ right over the said piece of land.”

The facts are as follows:

Upon exparte leave been granted the claimants on 27th December, 2001 the writ and statement of claim had been filed on the same day. In the course of trial the statement of claim was amended on 4th August, 2010. Being dissatisfied by the judgment the appellants/respondents in this ruling lodged an appeal to the Court of Appeal on 23rd October, 2012. The Notice of Appeal originally contained two grounds of appeal. The appellants obtained leave and filed two additional grounds. The brief of argument was filed on 28th January, 2013 with the following issues for determination:

“1. Whether the claim of the respondents was caught by Section 1 of the Limitation Law of Cross River State Cap.L14, 2004, and consequently statute-barred, thereby, robbing the trial Court of jurisdiction to hear and determine the suit ab initio. (Ground 2 of Original Grounds of Appeal and ground 3 of the Additional Ground of Appeal).

2. Whether the trial High Court was right when it relied on the evidence adduced by one Orok Eneobong in Orok Eneobong) in arriving at his decision to declare as void the conveyance made on the 5th day of April, 1974 between Princess Uduak Duke Ephraim and 2 others and Mrs. Martha Antia (Ground 1 of Original Grounds of Appeal).
3. Whether the fundamental right of the defendants to fair hearing as enshrined in Section 36(1) of the 1999 Constitution (as amended) was not breached when no notice of further hearing of the case was served on them, rather the Court made a foreclosure order against them barring them from cross-examining claimants’ witness (CW1) one (Ground 4 of Additional Grounds of Appeal).”

On 31st January, 2013 the respondents/applicants brought an application supported by affidavit praying for leave of this Court to adduce further evidence. The affidavit in support of the application deposed to by Ndabo Godwin Bassey the 3rd Respondent in the substantive appeal reads as follows:

“1. I am the third applicant on record.

2. By virtue of my position aforesaid, I am conversant with the facts of this application.
3. The judgment in suit herein given on 27th September, 2012 in favour of the applicants. The said judgment is Exhibit “A”.
4. The appellants/respondents did not call any evidence.
5. The applicant called evidence at the trial. The additional evidence the applicant is seeking to adduce was not available at the time of the trial/hearing.
6. The evidence the applicant is seeking to adduce was made by the 1st appellant/respondent when after the judgment, one Barr. Emmanuel Idaka filed a Notice of Appeal and Motion for stay of execution in respect of suit No. HC/560/2001, purporting to do so on the instructions of the 1st and 2nd appellant/respondents.
7. The additional evidence shows that the 1st appellant/respondent cannot lease or sell or mortgage or give out any land within Efut community given to King Duke by the Efut without the consent of the applicants.
8. The fresh evidence sought to be admitted will support the judgment of the trial Court.
9. The fresh evidence sought to be adduced is new in that it came after the date of the trial/hearing. The additional pieces of evidence made at the High Court and the Court of Appeal, after the judgment, are annexed hereto and marked Exhibit “B”.
10. Admission of the fresh evidence will serve the interest of justice.
11. The additional evidence, if they were available at the trial Court, would have strengthened the case of the applicant.
12. I swear to this affidavit in good faith, truthfully and in accordance with the oaths Act, 2004.”

Oliver A. Osang deposed to a counter affidavit on 1st February, 2013 as follows:

“1. That I am a Legal Practitioner in the Law Firm of Emmanuel E. Idaka & Associates, Counsel to the Appellant/Respondent by virtue whereof, I am conversant with the facts of this case.

2. That I have the consent and approval of my Principal as well as the Appellant/Respondent to depose to this affidavit.
3. That paragraphs 1 to 4 of the affidavit in support of the Applicants’ Motion of 30th January, 2013 for leave to call fresh evidence are true.
4. That paragraphs 5 to 12 of the affidavit in support of the Applicants’ Motion of 30th January, 2013 for leave to call fresh evidence are false and are hereby controverted.
5. In answer to the depositions stated in paragraph 4 above, the Applicants’ Counsel was briefed by Etinyin Nsa Ekeng (the Appellant) and David Henshaw (son to the late Obong of Calabar, HRH. Edidem (Professor) Nta Elijah Henshaw) to handle the appeal.
6. That as at the time the Appellants’ Counsel was briefed, there was no disagreement among the defendants in suit No. HC/560/2001. The 1st defendant (1st Appellant) later indicated his intention for whatever reason(s) to abandon the appeal after a Notice of Appeal of 23rd October, 2012 had been filed and served on the applicants herein.
7. That the additional fresh evidence the Applicants are seeking to adduce is no evidence in deed and will not in any way support or strengthen the default judgment already delivered on the 27th September, 2012 after the trial in favour of the Applicants.
8. That the additional fresh evidence the Applicants are seeking to adduce only shows that the 1st defendant (1st Appellant) is no longer interested in the appeal. And that his decision to withdraw from the appeal does not bind the 2nd defendant (Appellant) nor does it affect the competence of the appeal or any other step taken in the matter.
9. That consequent upon the notice dated 1st November, 2012 and filed 23rd November, 2012 given to the trial High Court by the 1st defendant of being satisfied with the judgment in suit No. HC/560/2001, the appellant/2nd defendant’s counsel with the consent of the appellant had indicated to the High Court wherein a motion for stay of execution is pending, that the name of the 1st defendant be struck out while the 2nd defendant/appellant proceeds with the appeal as well as motion for stay of execution at the lower Court.
10. That consequent upon the aforesaid development, the name of the 1st defendant was excluded in subsequent processes in this appeal and it is only the name of the 2nd defendant/appellant (Etinyin Nsa Ekeng) that is reflected on the Appellant’s brief of argument.
11. That the Applicants’ Motion of 30th January, 2013 for leave to call fresh evidence is a calculated attempt by them to distract the court with extraneous pieces of papers and prejudice the interest of the 2nd defendant/appellant’s predecessor-in-title (Mrs. Martha Antia).
12. That the application lacks merit, it is prejudicial intended to over reach the appellant/2nd defendant’s interest and same should be refused and dismissed with cost against them.
13. That I swear to this counter-affidavit conscientiously believing same to be true and correct in accordance with the Oaths Act, 2004.”

This Court ordered written addresses. The learned Counsel to the applicants filed written address on 8th March, 2013, citing as authority Order 4 rule 2 of the Court of Appeal Rules, 2011; Asaboro vs. Aruwaji (1974) 4 SC 119 and Uzodinma v. Izunaso (2011) 5 MJSC (Pt.1) 72-73 in support of the application.

The learned Counsel to the appellants filed what is headed “Respondents’ Reply Brief of Argument in Opposition to Applicants’ Motion for leave to adduce fresh evidence on appeal” on 18th February, 2013. The applicants’ Counsel argued that special circumstances existed for granting the application while the respondents’ Counsel argued that no special circumstances had been shown why leave should be granted the applicants/respondents to adduce fresh evidence on appeal, citing Okpanum v. S.G.E. Ltd. (1998) 5 SCNJ 142 at 144; Board of Inland Revenue vs. Joseph Pezcallah and Sons Ltd. (1962) All NLR 1 at 3; Sambo vs. Aliero (2010) All FWLR (Pt.502) 1135 at 1137-1139; Akanbi vs. Alao (1989) 3 NWLR (Pt.188) 118 at 159; Asaboro v. MGD Aruwaji & Anor (1974) 4 SC 87 at 90-91 as having settled the law as to what an applicant seeking leave to adduce fresh evidence in an appellate court must establish. Counsel urged this Court to dismiss this application.

Order 4 rule 2 of the Court of Appeal Rules, 2011 provides that.

“2. The Court shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an examiner or Commissioner as the Court may direct, but in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall he admitted except on special grounds.”