THE REGISTERED TRUSTEES OF THE DELIVERANCE TEMPLE CHURCH & ORS v. EFFIOM BASSEY IBAN
(2019)LCN/13015(CA)
(2019) LPELR-47357(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 2nd day of April, 2019
CA/C/03/2015(CONSOLIDATED)
JUSTICE
MOJEED ADEKUNLE OWOADE justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU justice of The Court of Appeal of Nigeria
Between
1. THE REGISTERED TRUSTEES OF THE DELIVERANCE TEMPLE CHURCH
2. NTOE ANDREW O. ANSA
3. HON. STEPHEN BASSEY
4. INNOCENT AGBOR O. EDEM
5. ASSIM O. A. ITA
(for and on behalf of Kasuk Qua Clans)Appellant(s)
AND
EFFIOM BASSEY IBAN
(For himself and on behalf of Amanso Family)Respondent(s)
RATIO
THE PRESUMPTION OF VALIDTY OF A JUDGEMENT
This is because there is a presumption of the validity and bindingness of a previous judgment until it is upturned on appeal. See S.P.D.C. [NIG.] LTD. v X.M. FED. LTD. [2006] 16 NWLR [PT. 1004] 189 SC; OSHIOMOLE v FGN [2005] 1 NWLR [PT. 907] 414; KAMALU v UMUNNA [1997] 5 NWLR [PT. 505] 321 SC; BABATUNDE v OLATUNJI [2000] 2 SC 9; OGIUGO v OGIUGO [2001] 1 WRN 131 SC. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal and cross-appeal against the judgment of Hon. justice Micheal Edem of the Cross River State High Court delivered in the Calabar Division of the Court on 25th June, 2014.
The Respondent/cross-appellant was the claimant in the Court below, while the Appellants/cross respondents were the defendants/counter-claimants. The co-claimant or 2nd claimant before the trial Court whose claims were dismissed is not a party to this appeal.
The Respondent cross appellant initiated the suit by a writ of summons of 18/7/2005. However, the Respondents claims crystalised in his 2nd Further Amended Statement of Claim of 4-11-2014 which in paragraph 24 at page 15 16 of the Record of Appeal reads thus:
24. The 1st defendant has remained in unlawful possession of the said land since May 1994 and has deprived the 1st claimants of the quiet possession, use and enjoyment of the land. Wherefore the 1st claimant claims against 2nd claimant and the defendants jointly and severally as follows:
i. A declaration that the 1st defendants
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Certificate of Occupancy No. CA/5380/97 dated 12th June 2001 in respect of the property situate at No. 151 Parliamentary Road, Calabar which said land is part and parcel of the 1st claimants land known as the Iban Amanso Residential Layout, Calabar is invalid, null, and of no effect whatsoever.
ii. A declaration that the 2nd claimants certificate of occupancy No. CA/2997/86 dated 9th December 1986 in respect of Plot 1, Iban Amanso Layout, which is a part of the property situate at No. 151 Parliamentary Road, Calabar, is invalid, null, void and of no effect whatsoever.
iii. A declaration that the 1st claimant is entitled to the possession of all that land situate at and known as No. 151 Parliamentary Road, Calabar consisting of Plot 1 and Plot 14 Iban Amanso Layout, Calabar.
iv. An order that the 1st defendant vacate and surrender immediate possession of all that land and its appurtenances situate at No. 151 Parliamentary Road, Calabar to the 1st claimant.
v. N10 million as general damages or mense profit against all the defendants for their unlawful occupation of the said land at No. 151 Parliamentary Road, Calabar
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either by themselves or through their privies from May 1994 until possession is given up.
vi. An Order of perpetual injunction restraining the defendants by themselves, their servants, agents and privies from entering into or interfering with the 1st claimants quiet enjoyment and possession of the land and property at No. 151 Parliamentary Road, Calabar.
The Appellants/cross-respondents/defendants counter claimants counter claimed in paragraph 34 of their Further Amended Statement of Defence and counter-claim at page 45 of the Record of Appeal as follows:
34. The defendants have suffered damages and therefore counter-claim against the claimants as follows:
i. A declaration that the land the Court of Appeal and the Supreme Court in CA/E/210/96 and SC/92/2002 gave the claimants is comprised in Plan No. CR/72/LD and is not within Plan Nos. TP/CAL/72, ASC/CRS/217/LD/78 and ASNL/CR/1041/LD.
ii. A declaration that the defendants/counter-claimants are entitled to the Certificate of Occupancy already registered as No. 99 at page 99 in Vol. 47 of Lands Registry, Calabar over the land described in Plan No. JEJ/CR/7800 dated 9th
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April, 1994 and made by JEJ Asuquo Licensed Surveyor.
iii. A declaration that the land describes in Plan No. JEJ/CR/7800, dated 9/4/94, is outside the land described in Plan No. CR/72/LD.
iv. An order of Perpetual Injunction restraining the claimants, their successors, servants, agents, privies and/or workmen from entering into or in any way interfering with the possession of the defendants, over the lands described in plan No. TP/CAL.172, Plan No. ASC/CRS/217LD/78 and Plan No. ASNL/CR/1041/LD.
v. N10 million damages for trespass.
The Respondent furnished a Reply in his Further Amended Reply and Defence to counter-claim filed on 14th December, 2010.
The Respondent as claimant alleged that the land in dispute No. 151 Parliamentary Road, Calabar, was within his fathers land of Iban Amanso Layout, granted to him in a counter-claim by the Court of Appeal in CA/E/210/96 and confirmed in the Supreme Court in SC/92/2002, even though there was a mistake in the judgment of the Court of Appeal. The Appellants contended that the Respondent does not have title to Iban Amanso Layout because the judgment in Appeal Nos. CA/E/210/96
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and SC/92/2002 came about by clear mistake or deceit and/or fraud. According to the Appellants the Respondents father was granted in those appeals title to Ikot Uduak village land that he did not claim, instead of title to the Iban Amanso Layout land that he claimed.
At the trial the Respondent claimant called one witness while the Appellants counter claimants called two witnesses. A total of 38 exhibits were tendered.
At the end of trial and submission of written addresses, the learned trial judge entered judgment for the Respondent 1st Claimant on their reliefs in respect only of that entity, Iban Amanso layout… and dismissed the counter claim of the Appellants.
Dissatisfied with the judgment, the Appellants filed a Notice of Appeal containing four (4) grounds of appeal in this Court on 5 11- 2014.
The Respondent in turn by a Notice of Cross-Appeal of 27/9/2016 cross-appealed on a sole ground of appeal on the finding of the learned trial judge that in previous Appeal Nos. CA/E/210/96 and SC/92/2002 the 1st Claimant/Cross-Appellant was granted to the land in Plan No. CR/72/LD.<br< p=””>
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THE MAIN APPEAL
The relevant briefs of Argument for the main appeal are as follows:
1. Appellants brief of Argument dated 16 2 2015 and filed on 19-2-2015. It is settled by Chief Orok I. Ironbar.
2. Amended Respondents brief of Argument [incorporating preliminary objection] contained on pages 1 to 16 in the document titled Amended Respondents Cross-Appellants brief filed on 27/9/2016 but deemed filed on 18/1/2017. It is settled by Essien H. Andrew, Esq.
3. Amended Appellants Reply [incorporating Reply to preliminary objection] contained on pages 1 7 in the document titled Amended Appellants Reply brief and Respondents brief to the cross-appeal dated 9/2/2017 and filed on 13/2/2017. It is settled by Nkoyo Ironbar (Mrs.).
Learned counsel for the Appellants nominated three (3) issues in the main appeal. They are:
i. Whether the trial High Court understood the case put forward or made by the parties and reflected this in its evaluation of the papers and exhibits in this case. [Grounds 1 & 4].
ii. Whether the trial High Court having agreed that it was
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bound by the Superior Courts judgments in CA/E/210/96 confirmed in SC/92/2002 which gave claimant/respondent land in Plan No. CR/72/LD, was justified to ignore that and dismiss the Appellants counter-claim. [Ground 2].
iii. Whether the trial Court on the issue of jurisdiction was justified to resolve it as affecting the Appellants.
Learned counsel for the Respondent in the main appeal submitted a sole issue for determination of the appeal, thus:
Whether on the preponderance of Evidence the learned trial judge was right to allow the Respondents claim and dismiss the Appellants counter claim.
Before delving into the appeal, I will first deal with the Respondents preliminary objection.
PRELIMINARY OBJECTION
On 12/3/2015, learned counsel to the Respondent filed a Notice of Preliminary Objection to the effect that Appellants Notice of Appeal was filed out of time and without an extension of time being first sought and obtained to file the appeal.
He conceded in his brief of argument that on 30/10/2016, that the Appellants filed a motion for extension of time to appeal. That on 26th April, 2016, the
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motion was taken with the Respondent opposing. But, that same was granted to the Appellants.
Learned counsel to the Respondents nevertheless insisted that since a valid interlocutory application cannot be made in an incompetent appeal, the belated extension of time to appeal granted to the Appellants did not cure the defective foundation for their appeal. On this, he referred to the cases of UDOETTE v HEIL [2003] FWLR [PT. 143] 362 @ 378; THE REGISTERED TRUSTEES OF FOURSQUARE GOSPEL CHURCH v OKOISOR [2007] ALL FWLR [PT. 357] 978 @ 986; EJIOGU v IRONA [2008] ALL FWLR [PT. 442] 1066 @ 1106; ALADE v OGUGUO [2007] ALL FWLR [PT. 349] 1188 @ 1194.
He urged us to strike out the appeal which according to him was initiated through an incurable originating process.
In response to the Respondents preliminary objection, Appellants submitted that they had filed a motion to regularize the then notice of appeal and that honourable Court granted extension of time on 20/4/2016. That after the order of this Court, the only option open to the Respondent was to file an appeal. To that extent, said Appellants, the cases relied upon by the
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Respondents counsel are not applicable herein.
Moreover, Appellants counsel submitted that by Order 4 Rules 3, 4 & 5 of the Court of Appeal Rules 2011 in force at the time, the power of the Court to make the order it made is not limited by the presence or absence of a notice of appeal or by any interlocutory order.
He urged us to discountenance the Respondents preliminary objection. I agree with the learned counsel for the Appellants that the order of this Court which extended the time by which the Appellants could file notice of appeal is valid and subsisting and that the only option open to the Respondent on that score is an appeal on the order of this Court which granted extension of time to the Appellants to appeal outside the stipulated time. This is because there is a presumption of the validity and bindingness of a previous judgment until it is upturned on appeal. See S.P.D.C. [NIG.] LTD. v X.M. FED. LTD. [2006] 16 NWLR [PT. 1004] 189 SC; OSHIOMOLE v FGN [2005] 1 NWLR [PT. 907] 414; KAMALU v UMUNNA [1997] 5 NWLR [PT. 505] 321 SC; BABATUNDE v OLATUNJI [2000] 2 SC 9; OGIUGO v OGIUGO [2001] 1 WRN 131 SC.
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For this reason, the Respondents preliminary objection cannot stand, it is overruled and dismissed.
Learned counsel for the Appellants chose to argue his issues one and two together. He submitted that paragraph 17 of the Respondents Further Amended Statement of Claim at page 14 admitted that:
There was however a seeming conflict in the Court of Appeal judgment caused by a clerical slip where the Court after holding that 12th appellants [1st claimants fathers] counter claim was allowed went on to refer to the Survey Plan of the 12th Appellants land as exhibit YY whereas there was no exhibit YY at all in the said suit and the correct designation of the 12th Appellants Survey Plan were exhibit Y1 and Z-Z1.
The above according to the Appellants was confirmed in paragraphs 19 20, of Written Statement on Oath of Effiom Bassey Iban i.e. the Respondent filed on 22/11/2010 at page 52 of the record.
He submitted that the response of Appellants as defendants is in paragraphs 6 19 of their Further Amended Statement of Defence and Counter Claim, at pages 41 45 of the record.
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Learned counsel for the Appellants reproduced paragraphs 6, 10, 15 and 17 as follows:
6 Paragraphs 17 and 18 of the claim are denied and in further answer to these paragraphs it is averred that the claimants plan mentioned was not before the Court of Appeal which in its judgment granted exhibit YY to the claimants. The said exhibit YY was Plan No. CR/72/LD of another land entirely and a copy of the Courts document showing this shall be founded upon at the trial hereof. This was to the knowledge of the claimant who filed applications to the Court of Appeal and Supreme Court alleging mistake on their part i.e. the Courts. These applications and the order striking them out are attached hereto. These Courts agree that they made no mistake and the counter-claim was clearly and specifically tied to the land described in the record as exhibit YY.
10 Even if the Court of Appeal and the Supreme Court made mistakes and have refused to correct them, this Court has no jurisdiction to do so. The 1st claimant in this same suit had earlier testified that he knew the land the Supreme Court gave him and that it was not the one he claims. He now wants
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to contend the contrary because the matter is starting de novo.
15 The Defendants aver that this proceedings is in abuse of Court process, oppressive and the High Court lacks the jurisdiction to entertain the main claim.
17 – The Defendants aver that the claimants have been using this excuse of their being in Court to lease their lands suing them, their workers and worshippers on the land and this has caused embarrassment, reduction in membership and a huge loss to them. This is deliberate as the claimants testified earlier in this case that the land in dispute herein is not what the Supreme Court gave them.
He submitted that the Appellants pleadings were c
