Nsa Hogan Nkute & Ors. V. Chief Eyo Edem Ita Ndem (2009)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the Ruling of Binang, J. of the High Court of Cross River State, sitting at Calabar in Suit No. HC/MISC/63/96 delivered on the 6/4/98, wherein the respondent was granted leave to prosecute his case in a representative capacity against the appellants.

The respondent had instituted proceedings against the appellants in Suit No. 210/25: Utang Nyok Esu v. Ekpeyong Ekpenyong Eyo II, before the Creek Town District Court in 1925 claiming ownership of Nyok Eyo land, lying and situate at Edik Iko, Creek Town, in Odukpani Local Government Area of Cross River State. Judgment was given in favour of the Eyo Ndem House. The present respondent alleged that the appellants trespassed into the land which title was given to Eyo Ndem House by the Creek Town District Court in Suit No. 210/25. Sequel to this, the respondent filed a motion ex parte before the trial court on 26/3/96, praying for an order granting leave to them to prosecute the case against the appellants in a representative capacity. The case was for contempt proceedings against the appellants for trespassing into the land which title was given to Eyo Ndem House by Creek Town District Court in Suit No. 210/25. The trial court granted the prayers of the respondent in Suit No. HC/MISC/63/96.

Dissatisfied with the ruling of the trial court, the appellants appealed to this court on one ground. The ground of appeal is as follows:

“Ground of Appeal

“The learned trial Judge erred in law in granting leave to the respondent to prosecute against the appellants/applicants in a representative capacity.”

From the lone ground of appeal the appellants in their brief dated 18/6/07 and filed on 19/6/07, raised four issues for determination as follows:

“i. Whether the applicants (now respondents) in Suit No. C/MSC/63/96 can bring an application by way of a motion to convert a 75 year old suit into a representative capacity?

ii. Can the judgment of a court in which the other members of the community/family were not parties be binding on them?

iii. Whether the applicants can bring contempt proceedings against the other members of the community as a whole then they were not parties to the action and the judgment of the Creek Town District Court in Suit No. 210/25?

iv. Did the respondents show that the land in question was communal land as to warrant the order granted?

The respondent in his brief dated 17/5/08 and filed on 19/5/08 raised a preliminary objection to the appeal at page 2 of the brief. At page 3 of the brief the respondent distilled one issue for determination. The issue is as follows:

“Whether the lower court which granted approval for the respondents to prosecute the action in representative capacity against the appellants was in (sic) duty bound to consider the rights of the parties at that stage of the case and whether the court infact determined the rights of the parties.”

Upon being served with the respondent’s brief, the appellants responded by filing an appellants’ reply brief. The parties adopted and relied on their respective briefs of argument for the determination of this appeal.