Nyufam Augustine Bassey Eyo & Ors. V. Ntufam Ojong Okpa & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This appeal emanated from the judgment of Hon. Justice M. O. Eneji of the High Court of the Cross River State sitting at Akampa, in Suit No: HR/1/92 delivered on 19/5/2008.

The facts of this case are that the parties were living together as one in Old Netim, which they acquired from the Mbarakom people in 1912 for a consideration. Later the present appellants moved from Old Netim to New Netim. Apparently there was no reason why the appellants left Old Netim. There was a court case in 1928 between the parties before the customary court Calabar in 1928 where the court decided that the two communities should live apart without any disturbance. There was another case in 1985 where there was a move to settle the case out of court. That gave rise to a terms of settlement. Another dispute arose again between the parties in 1992. This time it was the respondents who as plaintiffs took out a writ from the registry of the trial court on 5/3/92.

The respondents filed their statement of claim of 42 paragraphs dated 21/4/1992 and filed on 28/4/1992. The respondents at paragraph 42 of the statement of claim, claimed as follows:

1. A declaration that by virtue of the plaintiffs being entitled to rents, royalties and whatsoever monies payable to the plaintiff community the defendants for themselves or as representing their community should not interfere or purport to make any claims on behalf of the plaintiff community from its Tenants.
2. A declaration on that the Defendant whether individually or collectively are incompetent to demand for accountability from the plaintiff for whatever monies collected by the plaintiff in their capacity as representatives of the plaintiff community.
3. A declaration that the exit of the defendant’s community from the plaintiff community in Old Netim village Akamkpa Local Government Area to New Netim village in Odukpani Local Government Area in 1932 put a final stop to whatever claims the Defendant purport to enjoy from the plaintiffs community.
4. A declaration that whatever benefit the defendants had hitherto enjoyed from the plaintiff tenant were mere privileges and not right strictly speaking and therefore the plaintiffs have every justification to deprive them of such privileges if they have been abused, misused or seen to be capable of being abused or misused.
5. A declaration that the privilege enjoyed by the Defendant Community from the plaintiff community have been so abused to the detriment of the plaintiff Community.
6. A declaration that by virtue of the defendants present location in faraway Odukpani Local Government Area of Cross River State, they are not exposed to the everyday hazards faced by the plaintiff community from the plaintiff tenants and therefore have no claims whatsoever as compensation, Royalties or Rents from the plaintiff tenant.
7. A declaration that the plaintiff communities are not prepared and willing to condone the mistake of their predecessors by extending any similar privileges extended by them to the defendant to the detriment and neglect of the plaintiff sons, daughters and the entire Old Netim Community.
8. A declaration that the letter from the Defendant Solicitors U. A. Uno & Associates of No. 39 Bassey Duke Street Ref. No. UUA/JEA/Vol.1/30/92 dated 1ih February 1992 Captioned “RE: Affairs to Netim Community on it affects the people of New Netim” is of no effect whatsoever but an abuse on the intelligence, tolerance and understanding of the people of Old Netim who have for long been accommodating the defendant for the simple reason that they share a common origin.
9. An injunction restraining the defendant either by themselves or through their agent or otherwise from further intermeddling with the affairs of the people of Old Netim as well as from making any obnoxious claims or demands from its various tenants for and as representing the people of Old Netim Community.

The appellants also filed a statement of defence of 27 paragraphs at page 18 – 23 of the record. The respondents on 31/10/2002 filed an amended statement of claim, which is at page 139 – 144 of the record. The appellants filed an amended statement of defence and a counter claim, which is at pages 151 – 157 of the record.

At the hearing of the case, the respondents called 2 witnesses to support their claims. The appellants similarly called two witnesses. At the conclusion of hearing counsel for the parties submitted written addresses. After adopting and relying on their respective addresses, the learned trial Judge in a well considered judgment entered judgment for the respondent on the ground that settlement in Suit No: H/4/85 was decided per incuriam because the judgment of the customary court in Suit 412/28 was still valid and subsisting.

Dissatisfied with the judgment of the trial court, the appellant appealed to this court on five grounds subscribed in the Notice of appeal. The appellants distilled four issues from the five grounds of appeal in their brief of argument dated 8/11/2008 and filed on 10/11/08. They are:

1. Whether the learned trial Judge was right in relying on the District Court judgment in Suit No. 412/28in upholding a plea of res judicata in favour of the Plaintiffs/Respondents.
2. Whether the learned trial Judge was right in setting aside the consent judgment of Akamkpa High Court in suit No. HK/5/84 and Hk/5/85 (exhibits D & E) thereby tending to over rule the decisions of the Supreme Court in

(a) UKAEBU V. UDOH (1991) 6 NWLR Part 196 P. 127

(b) OGBODIE V. NDINIBE (1992) 6 NWLR Part 245 P. 40.

(c) MOHAMMED V. DAN TATA (2000) 2 SCNQR P. 655.

3. Whether the learned trial Judge was right in relying on Administration Boundaries in deciding the right of the parties in land thereby tending to over rule the Decision of the Supreme court in NKUMA V. ODILI & ODILI V. ANENE (2006) 137 LRCN P. 1301.
4. Whether the trial Judge properly evaluated the evidence before him in arriving at his decision in the case.

The respondents in their brief dated 10/12/2008 and filed on 11/12/2008 adopted the four issues formulated by the appellants.

Upon being served with the respondent’s brief, the appellants filed an appellants reply brief dated 18/3/2009 and filed on 25/3/2009.

In arguing Issue No.1, the appellants contended that the trial Judge was in error in relying on the District Court Judgment in Suit No. 412/05, admitted as exhibit 2, to grant a plea of res judicata, when the essential elements to sustain the plea were lacking. Appellants further contended that the issues raised and determined in Exhibit 2 were not the same as issues in dispute in the case at the lower court and the present respondents who were the appellants failed to counter claim so they did not have the declaration of title in their favour, because the case of New Netim or plaintiffs in that case was merely dismissed. They relied on Ojah vs. Ogboni (1996) 6 NWLR (Pt. 454) 272 at 298.

On Issue No.2, the appellants referred to page 39 of the record and submitted that the learned trial Judge was in error when he purported to set aside the consent judgment in Suit NO.HK/5/84. It was contended that the consent judgment in Suit No. HK/5/84 was a judgment of the same court of concurrent jurisdiction, therefore the trial court has no power or competence to set it aside.