Prince Louis Mesembe Asikpo & Anor V. Mr. Samuel George & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the High Court of Cross River State, sitting at Calabar in Suit No. HC/389/2004 contained in the judgment delivered on the 27/7/2010. Appellants as plaintiffs in the said suit, had claimed for declaration of title to land against the Respondents in the following terms:

a) A declaration that by virtue of the Deed of Lease between Chief Ekpenyong Asuquo Hogan as the administrator of the estate of late Obong Edem Ekpenyong Ephraim Adam II and Mr. Gregory Mesemberr Asikp the 1st plaintiff is the beneficial owner of all that piece/parcel of land lying and situate at Edem Ekpenyong Street, Calabar and more particularly described and delineated in Survey Plan No. TJ. CR931 and as such entitled to the grant of a certificate of occupancy thereon.

b) A declaration that by the virtue of the Enrolled Order of this Honourable Court made on the 21st day of February, 2001 recalling the probate granted, in favour of Chief Joseph Effiong Adam Ephraim on the basis of the FORGED WILL OF OBONG EDEM EKPENYONG EPHRAIM ADAM II, all transaction and agreements entered into by the said Chief Joseph Effiom Adam Ephraim including the lease Agreement of 1st January, 1978 in favour of one Mrs. Eyamba George, purportedly as administrator of the estate of Obong Edem Ekpenyong Ephraim Adam II are null and void and of no effect whatsoever.

c) An order setting aside the aforesaid Lease Agreement dated 1st January, 1978 between Chief Joseph Effiom Adam Ephraim and Mrs. Eyamba George, the same having been predicated on fraud and forgery.

d) An order of perpetual injunction restraining the defendants, by themselves, their agents, servants, hirelings and assigns from further trespassing on the plaintiff’s land aforesaid.

e) N5,000,000 damages against the defendants, jointly and severally for trespass to the land, the subject matter of this suit.

The Respondents denied the claims by the Appellants in their statement of defence and so the suit proceeded to trial at the end of which, the High Court in the aforementioned judgment, dismissed the claims by the Appellants. Not satisfied with the dismissal of their case, the Appellants caused a notice of appeal containing two (2) grounds to be filed against the decision, on the 15/9/2010. Due to their brevity and the notice of preliminary objection filed by the learned counsel for the Respondents on the issues raised in the Appellants’ brief, I can afford to set out the grounds as follows:

GROUNDS OF APPEAL

The trial court erred in law when it assumed jurisdiction to set aside the judgment in exhibit 3 tender (sic) in this case, when statutory condition precedent to such an event had not been fulfilled.

Particulars of Error

1) There was no formal application by the defendants i.e. by way of motion or by fresh suit or counter claim as required by the Cross River State Court Civil Procedure Rules of 2008.

2) The failure to fulfill the above statutory conditions precedents robbed the trial court of jurisdiction to set aside the earlier judgment tender as Exhibit 3.

3) The court only has inherent jurisdiction to regard exhibit 3 as a nullity and to set it aside upon application.