ESSIEN ANANA INYANG v. MADAM CHRISTIANA IRONBAR
(2010)LCN/3896(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of June, 2010
CA/C/139/07
RATIO
WHETHER ISSUES FOR DETERMINATION MUST FLOW FROM THE GROUNDS OF APPEAL FILED BY THE APPELLANT
The rule is that issues for determination must flow from the grounds of appeal. See Ugo V Obiekwe 1989 2 SC (Pt.11) 41. Issue for determination not related to or based on grounds of appeal is not only incompetent but completely valueless and must be ignored by the Appellant Court. See Omo VJSC Delta State (2000) 7 SC (Pt.11) 1. PER NWALI SYLVESTER NGWUTA, J.C.A.
PROLIFERATION OF ISSUES: WHETHER ISSUES FOR DETERMINATION IN AN APPEAL CAN BE MORE THAN THE GROUNDS OF APPEAL
…even if the three additional issues can be related to the five grounds of appeal, they would violate the principle of formulation of issues for determination in that the issues for determination would be in excess of the grounds of appeal. See Labiyi V. Anretiola (1992) 10 SCNJ 1 at 2. PER NWALI SYLVESTER NGWUTA, J.C.A.
FORMULATION OF ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION CAN BE FORMED FROM ONE OR A COMBINATION OF GROUNDS OF APPEAL
An issue must arise from one or a combination of grounds of appeal. See Nwudengi & Ors V. Aleke (1996) 4 NWLR (Pt 442) 349.Agu V. Ikewibe (1991)3 NWLR (P 180) 385, Bendal State V. Aideyan (1989) 4 NWLR (Pt.99) 566. PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JA’FARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
Between
ESSIEN ANANA INYANG Appellant(s)
AND
MADAM CHRISTIANA IRONBAR Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): Endorsed on the writ issued on 8/1/96 from the Registry of the High Court of Cross River State Calabar Judicial and reproduced in paragraphs 49 of the statement of claim are the plaintiff’s (now Appellant) claims against the Respondent (then Defendant):
“(1) A declaration:
(a) That the house No 22 Ekondo Street Calabar is the family property (“Ndon”- in Efik of the family of late madam Mary Bassey Effiom,
(b) That the house No 22 Ekondo Street Calabar is not the personal property of late Efiong Anana Inyang and cannot therefore form part of the estate of the said late Efiong Anana Inyang.
(c) that any document which purports to give title/ownership of the said property No 22 Ekondo Street, Calabar on the basis of evidence before the court to late Efiong Anana Inyang, be declared null and void and of no effect.
(d) That any person or group of persons wishing to have anything to do with the said property (No 22 Ekondo Street, Calabar) should do with the consent of the plaintiff or the family’s accredited responsibilities.
(2) An Order restraining the defendant by himself, his servant, agent or otherwise from claiming or holding that house No 22 Ekondo Street is the property of late Efiong Anana Inyang.
(3) N300,000.00 special and general damages for the injury/defacement to the house-No 22 Ekondo Street through the trespass acts of the Defendant.
PARTICULARS OF SPECIAL DAMAGES:
(A) Cost of two gallons of emulsion white paint for inscription at N1000 each – N2,000.00.
(B) Cost of two gallons of oil paint at N1500 each – N3,000.
(C) A bag of cement for inscription at N650.
(D) Workmanship for inscription:
(i) Carpenter = N750
(ii) Mason = N850
S/total = N7,250
General damages = N297,750
Grand total
N7250 +N292,750 = N4300.000″
Pleading were filed and exchanged. At the conclusion of the trial and after the addresses of Learned Counsel for the parties, the learned trial Judge held:
“After a careful consideration of the submissions of both learned Counsel, I hold that the Plaintiff
has failed in establishing that the house at No 22 Ekondo Street Calabar is family house and not that of the Defendant”.
See page 222 of the records. His Lordship did not stop there.
He continued:
“Being so, I enter Judgment for the Defendant as follows:
(1) That the house No 22 Ekondo Street is not the family house but of the family of late husband of the Defendant.
(2) That house No 22 Ekondo Street, Calabar is the Personal property of the late Effiong Anana Inyang.
(3) The Plaintiff is hereby restrained by himself, servants agents or otherwise from claiming or holding that the house No 22 Ekondo and is that it is (Sic) not family property but that of the Defendant.”
See pages 222-223 of the records.
The appellant felt aggrieved and appealed the Judgment on five grounds, hereunder reproduced, shorn of their particulars:
1 The learned trial Judge erred in law when he entered Judgment for the Defendant whereas there was no such claim filed.
2. The learned trial Judge erred in law when he failed to consider the effect of admission of the root of title in the Defendant’s Statement of Defence as being that of Late Madam Mary Bassey Effiom.
3. The learned trial Judge erred in law when he held that the Plaintiff have (Sic) failed to show whether his title is by devolution conveyance, will, gift or allotment.
4. The learned trial Judge misdirected himself in law when he failed to consider serious issue of fraud raised and pleaded by the Plaintiff.
5. That the Judgment is against the weight of evidence.”
In his brief of argument learned Counsel for the Appellant distilled from the five grounds of appeal the following four issues for determination:
1. Whether it was proper for the trial Court to enter Judgment for the Respondent who never Counter-claimed in the suit.
2. Whether the property known and situated at No 22 Ekondo Street, Calabar is not a family property or that of Respondent’s late husband.
3. Whether the production of the deed of conveyance and the certificate of occupancy over No 22 Ekondo Street Calabar which documents were fraudulently obtained rendered Respondent’s claim to ownership of the property by her late husband impeccable.
4. Whether the Appellant did not prove his claim in the suit to entitle him to judgment especially as to No 22 Ekondo Street Calabar being a family property.
In his brief of argument learned Counsel for the Respondent adopted the issues formulated by the Appellant even though he described the grounds of appeal, particularly ground one, as argumentative. However learned Counsel did not raise a preliminary object to the grounds of appeal from which the issue he adopted was framed.
Though Learned Counsel for the Respondent did not Cross-appeal nor did he file a Respondent’s notice he raised additional three issues, making a total of seven issues purportedly from the Appellant’s five grounds of appeal.
In issue one in his brief learned Counsel for the Appellant referred to paragraph 33 of the statement of defence at page 127 of the records for the concluding part of the evidence of the Respondent wherein she said:
“I urge the Court to dismiss the Plaintiffs Claim.”
Based on the above learned Counsel contended that the Judgment and declaration and orders in favour of the Respondent cannot be justified. He said parties and the Court are bound by pleadings and in absence of a counter claim there was no ground for the Lower Court to hold that:
“Being so, I enter judgment for the Defendant…”
See page 222 of the records.
He urged the Court to set aside the Judgment of the trial Court based on his argument in issue one.
In issue two he contended that on the totality of the evidence before the Court the property No 22 Ekondo Street was acquired by the Appellant’s mother who was also the mother of the late husband of the Respondent. He referred to Bassey V Cobham (1956) 5 NLR 92 and Shelle V. Asajon (1957) 2 FSC 65 in support of his contention that a family property does not cease to be so just because a member of the family that owns it improved it out of his private means. He referred to paragraph 5 (a) of the statement of defence to the effect that the property was first acquired by the Appellant’s mother who built a thatch house thereon and said that the Appellant did not have to prove a fact admitted by the Respondent.
He urged the Court to resolve the issue in favour of the Appellant. Arguing issue three Counsel faulted the finding of the trial Court that based on the title documents produced by the Respondent the property in dispute is that of her late husband.
He referred to the deed of conveyance Exhibit h at pages 59 to 61 of the records and said since it was not registered it should not have been admitted in view of S.15 of the Land Instrument Registrar Law of Cross River state. He relied on Archibong V State (2006) All FWLR (Pt 323) page 1768 and urged the Court to expunge the said document as having been wrongly admitted in evidence by the trial court. He referred to the evidence of the Respondent and argued that if she was married in 1978 as she swore she could not have signed Exhibit h as the wife of her husband in 1971. Based on the above Learned Counsel contended that Exhibit h was forged. He said that the trial Court should not have relied on the certificate of occupancy which was anchored on Exhibit h which he said never existed in Law. He relied on Ogunleye V. Oni (1990) 2 NWLR (pt.135) 745 and submitted that the possession of a certificate of occupancy is not a conclusive proof of title to property. He referred to S.34 of the Land Use Act. He urged that Court to hold that from the evidence before the Court below the Late husband of the Respondent had no valid interest or title to the disputed property.
He urged the Court to resolve issue 3 in favour of the Appellant.
In issues 4 Learned Counsel referred to the pleadings and evidence before the trial court and submitted that the disputed property was family property. He added that the respondent did not prove title by the Efut custom she pleaded as not Efut was called to prove the custom. He relied on Ouunlege v.Oni (Supra).
He urged the court to resolve issue 4 in favour of the Appellant.
In conclusion he urged the court to allow the appeal set aside the judgment of the trial court and enter judgment for the appellant in terms of his claim in the court below.
In his brief learned counsel for the respondent stated.
Objection to the coinage of ground A of the Notice of Appeal”
He said he was raising a preliminary point against ground 1 of the Appeal on the ground that it is argument and narrative and therefore offends order 6 r. 2 (3) and r.3 of the Court of Appeal Rules.
He said that the ground of appeal which left the respondent in doubt as to the Appellant’s complaint is incompetent. He referred to Umoh v. Industrial Training Governing Council (2001)4 NWLR (Pt 703) 281. He also argued that arguments are not to be articulated in the grounds of appeal adding that ground 1 confuses argument meant for brief of argument with ground of appeal and particulars of error. He argued that there was nothing to counter-claim as title of the property already resides with the Respondent in view of title documents, letter of Administration and Judgment in suit Mo. C/98/94. He urged the Court to treat ground 1 with complete disregard.
Arguing issue one learned Counsel said that the issue of counter-claim did not arise in the case. His words:
“The Appellant is not oblivious of the foundations and fundamental basics of the Respondent’s case neither does he appreciate the difference between the Respondent’s case, and such others that will require a counter claim.”
With reference to the Appellant’s relief (a) and (b) in the statement of claim he said the Appellant wanted a declaration that the property is dispute was family property and not the personal Property of the Appellant’s late husband. The above claims, in learned Counsel’s view, gave the trial Court the option of deciding that the property is the family property or the personal property of the late husband of the Respondent. In Counsel’s understanding the expression “is family property” and “is not personal property” meant that the trial Court had to choose one or the other of the two.
He said that the trial Court is not bound to believe the Appellant nor to leave the “title hanging at limbo” Learned Counsel said that the Judgment in favour of the Respondent was a consequential order arising from the substantive relief or claim. He relied on Obayebbina V. Obazee (1972) 5 sc 747 for the Supreme Court’s definition of consequential order. Counsel said that the trial Court’s Judgment followed and resulted directly from the options in the claim of the Appellant.
Learned Counsel saw no rationale for a counter-claim because of the title documents produced by the Respondent, the fact that the Respondent was granted letters of administration of the property and the subsisting Judgment in the matter in suit No C/89/94.
Learned Counsel saw wisdom in the Respondent not counterclaiming for what she already had by virtue of law and subsisting Judgment in C/89/94.
In issue two learned Counsel summarized the basis of the Appellant’s claim. The fact that all the children of his mother grew up to see the thatch house and the writing on the wall naming the house after their mother. He cited Inyang V. Ita & Ors (1929) 8 NLR 84 at 85 for the primogeniture rule of succession among the Efik and Ibibio. He argued that though the mother of the Appellant had a thatch house on the land the principle of reversion applied when the house collapsed under the Efik Custom. He referred to Gaji V. Paye (2003) FWLR (Pt 163) 1 and Olowosago V. Adebanjo (1988) 4 NWLR (Pt 88) 275 in his contention that the Appellant was unable to lead evidence in proof that the property belonged to the family. He said that the Respondent traced at the trial Court where the title of her mother-in-law terminated and where/when her late husband’s title commenced.
He said that the Appellant did not call the Muri on the issue of reversion in interest raised by the Respondent. He said two separate judgment of the trial Court in C/89/94 and c/16/96 decreed the property to be that of the late husband of the Respondent.
In issue 3 on the production of deed of conveyance and certificate of occupancy counsel argued that the Appellant demanded more proof of the Respondent’s act of ownership than the proof required of the Appellant.
Learned Counsel waxed Biblical and invoked the wisdom King Solomon exhibited in resolving the dispute over the living child in the book of King 3:24-26. He described the issue of fraud raised by the Appellant as an
“Attempt to pitch the sea weeds where the hunt for Wales fails.”
He said that the Appellant should have sued to have the document he described as fraudulent set aside. Counsel said that he Appellant wasted his credit hours on name calling rather than proving his case. He said:
“The essential feature of this appeal is the Appellant’s lavish resort to sentiment and the misguided citation of Judicial Authorities.”
Relying on Aboyeji V. Momoh (2002)2 QRN 180, he said sentiment, has no place in judicial deliberations.
In issue 4 which he said is the same as issue 2 he referred to the nature or quality of the evidence led at the trial by the Appellant. He listed what he called material evidence of the prosecution as:
(i) Exh. A- Letter for the Appellant to Administrator – General to take over the property.
(ii) Exh. B – letter for Appellant’s Counsel to the Respondent.
(iii) Exh.C Survey plan made by the Appellant p. 170 of the records.
(iv) Exh. D- proposed building plan (P. 17 of the records)
Counsel said Exh. A-D are all the Appellant could offer in proof of his claim. For what he called oral evidence of prosecution Counsel referred to PW3. Counsel argued that the trial Court having Considered the entire evidence of the Appellant came to the conclusion that:
“Based on the above, it is my view that the plaintiff (Appellant) has failed to substantiate his claim to title”
See page 222 lines 10-11 of the records
On the other hand he listed Exhibits F-H and evidence of DW1 and DW2 as the totality of the evidence of the Respondent, based on which the trial Court held at page 222 of the record that:
“On the contrary the testimony of the Defendant is clear……… I have examined the exhibits and there is no doubt that the property at 22 Ekondo belongs to the late husband”.
He urged the court to resolve issue 4 in favour of the Respondent and urged the Court to dismiss the appeal.
The additional three issues will be dealt with later in the Judgment.
In his reply brief learned Counsel for the Respondent said the protest of the Appellant is misconceived as ground 1 from which issue 1 was derived was not argumentative and that the respondent was left in no doubt of the appellant’s complaint. He added that the case of Umoh V. Industrial Training Governing Council (Supra) is not applicable.
He submitted that the Respondent misconceived what counter-claim means. He said suit No C/89/94 never gave title of the disputed property to the Respondent and that the letter to the Administration General referred to the “Household properties” of the Respondent’s husband at No 22 Ekondo Street Calabar and not to the property itself. He submitted it was the duty of the Respondent to call the Muri of Efut Abua and Efut Ekondo to prove the reversionary interest she raised and on which the relied.
Counsel argued that a member of a family could sue to protect family property even without the consent of other members.
Issues E-F and G presented by the Appellant did not arise from the grounds of appeal and ought to be struck out. He urged the Court to allow the appeal and set aside the Judgment of the trial Court and enter judgment for the Appellant.
Learned Counsel for the Respondent raised and argued what he called
“Objection to the coinage of ground A of the notice of appeal”.
He said, he raised a preliminary point against ground 1 of the five grounds of appeal, relying on Order 6 r.2 (3) and 3 of the Court of Appeal Rules. He said the ground is argumentative and narrative and left the Respondent in doubt of the complaint of the Appellant. The ground of appeal in hereunder reproduced once more for ease of reference, shorn of its particulars:
“the learned trial judge erred in law when he entered judgment for the Defendant whereas there was no such claim flied by the Defendant by way of counter-claim.”
With profound respect to learned Counsel there is no argument or narration in the ground reproduced above. The Respondent is not in doubt that the Appellant’s complaint is that Judgment was given to the Respondent even though she did not file a counter claim in the suit. I find no substance in the argument that the Appellant confused the particulars in ground one with the argument in that ground.
Even if there was any substance in the preliminary point raised by learned Counsel, he should have had recourse to order 10 of the Court of Appeal Rules 2007, dealing with notice of preliminary objection.
Learned Counsel for the Respondent adopted the four issues framed from the Appellant’s five grounds of appeal. However learned Counsel for the Respondent framed three additional issues for determination. He did not Cross-appeal and did not file a Respondent’s notice. The three issues did not arise from the grounds of appeal. The rule is that issues for determination must flow from the grounds of appeal. See Ugo V Obiekwe 1989 2 SC (Pt.11) 41. Issue for determination not related to or based on grounds of appeal is not only incompetent but completely valueless and must be ignored by the Appellant Court. See Omo VJSC Delta State (2000) 7 SC (Pt.11) 1.
Further more even if the three additional issues can be related to the five grounds of appeal, they would violate the principle of formulation of issues for determination in that the issues for determination would be in excess of the grounds of appeal. See Labiyi V. Anretiola (1992) 10 SCNJ 1 at 2. An issue must arise from one or a combination of grounds of appeal. See Nwudengi & Ors V. Aleke (1996) 4 NWLR (Pt 442) 349.Agu V. Ikewibe (1991)3 NWLR (P 180) 385, Bendal State V. Aideyan (1989) 4 NWLR (Pt.99) 566.
The additional issues are hereby struck out as incompetent and of no relevance in the appeal.
Issue 4 is a version of issue 2 and issue 3 on the production of documents alleged to have been obtained fraudulently relates to proof and is encompassed in issue 2. I will therefore determine the appeal in issues 1 and 2 in the Appellant’s brief.
Issue one is on the judgment and order of the Court below:
1) That the house No 22 Ekondo Street, is not the family house but of the family of late husband of the Defendant.
2) That house No 22 Ekondo Street, Calabar is the personal property of Late Effiong Anana Inyang.
3) The Plaintiff is hereby restrained by himself, servants, and agent or otherwise from claiming or holding that the house at No 22 Ekondo Street and (Sic) is that, it is not family property but that of the Defendant.” (See page 53 of the records)
From the pleadings and evidence the trial Judge found that the Appellant failed to prove that the property situate at No 22 Ekondo Street, Calabar is the family property of the family of Late Madam Mary Bassey Effiom. In view of the fact that there was no Counter-Claim the Lower Court should have dismissed the Appellant’s claim in its entirely without making declaration in favour of the Respondent, or granting injunction against the Appellant. These are orders not sought for and the dismissal of the Plaintiff’s case does not automatically confer title to the disputed property on the Defendant. See Aniwoji V. Shoduke (2006) 13 NWLR (Pt.996) 34 SC.
A trial Court is entitled to adopt and rely on the evidence of the defence in preference to that of the Plaintiff but this will only lead to a denial of the reliefs sought by the Plaintiff but can never be a basis for awarding the reliefs denied the Plaintiff to the Defendant. The Court cannot restate or repeat in a subsequent suit orders made in an earlier suit. This is akin to a Court affirming an order made by a Court of coordinate jurisdiction. I resolve issue one in favour of the Appellant, and set aside the orders in farvour of the Respondent.
Issue 2 as framed in the Appellant’s brief, it is hereunder reproduced:
Issue 2
“Whether the property known and situate at No 22 Ekondo Street, Calabar is not a family property or that of the Respondent’s Late husband”
Viewed in the light of the totality of the evidence before the trial Court Appellant’s issue 2 is predicated on the fact that the property in dispute belongs to either the family of Madam Bassey Effiom or the family of late Effiong Anana Inyang, the late husband of the Respondent. The issue is more simplified than Learned Counsel for the parties presented it in their briefs.
In her statement of defence not only did the Respondent (as defendant) deny the Appellant’s claims but set up a defence of resjudicata and estopped on the basis of the judgment of the High Court, Calabar in suit No. C/89/94. The genesis of suit No. C/89/94 is the Application written by the Appellant to the Administrator – General of Cross River State to take over and manage/administer the estate of the late husband of the Respondent. In reaction to the attempt of the Administrator-General to administer the estate, which included No 22 Ekondo Street, Calabar the Respondent sued the Administrator- General.
The High Court decided in favour of the Respondent and granted her letters of Administration to administer her late husband’s property which included the property now in dispute.
In reply to the Respondent’s statement of defence the Appellant averred that suit No. C/89/94 granted the Respondent Control and Administration of the property which he said is not the same as ownerships. It was also averred that the Appellant’s application to the Administrator-General to take over the estate of the late husband of the Respondent did not include No 22 Ekondo Street but only a list of the property of the late husband of the Respondent which were kept in the house at No 22 Ekondo Street, Calabar now in dispute.
At the close of pleadings a plea of estopped per rem judicatum or res judicata if not rebutted, can scuttle the plaintiff’s case so that if the matter is withdrawn ever before evidence is taken the Plaintiff’s suit will be dismissed. See Aghadiuno V. Onubogu (1989) 4 SCNJ 81.
In the case at hand did the Appellant rebut the special plea of the Respondent. I am constrained to answer the poser in the negative because a distinction between Control and Administration on one hand and ownerships of the property on the other hand is no answer to the issues raised by the Respondent on the judgment in suit No C/89/94. The judgment and order made in suit No C/89/94 were based on the proof that the property /estate is respect of which the Lower Court granted the Respondent letters of Administration, including the property at No 22 Ekondo Street, Calabar, belonged to the Respondent’s late husband.
Also the fact that in his letter to Administrator- General to take over the estate of his late brother, Appellant listed not No 22 Ekondo Street, Calabar but only the deceased’s property in the said house is no answer to the inclusion of the property at No 22 Ekondo Street, Calabar in the letters of Administration granted the Respondent by the Court below. Though in the state of pleadings the Appellant did not rebut the plea of res judicate and estopped the Respondent led evidence of her institution of suit No C/89/94, and the decision making her Administratrix of the estate of her late husband including No 22 Ekondo Street, Calabar.
There is unchallenged evidence that Appellant was in Court through the proceedings in suit No C/89/94. Appellant said his offer to testify in the suit was rejected. What interest of his did he intend to protect or what case did he intend to make by his testimony since he was not a party to the proceedings? On the facts of the case the Appellant is bound by the decision in suit No C/89/94 and cannot relitigate on the same issue in a subsequent pleading. See Akanni V. Makanji (1978) 11-12 SC 13 at 26-27. Ogundaini V. Araba & anor (1978) 6-7 SC 55 at 83.
Appellant did not apply to be joined as a defendant in suit No C/89/94 nor having failed to apply to be joined did he appeal the judgment in suit No C/89/94 as an interested party.
Further more the lower Court granted the Respondent letter of Administration over the estate of her late husband based on its finding of fact that the said estate including No 22 Ekondo Street, Calabar belong to the Respondent’s late husband. By relitigating the matter in the Court below, Appellant was in effect asking that Court to set on appeal over its own judgment and by his appeal Appellant is urging the Court to over turn the judgment in suit No C/89/94 against which he did not appeal as an interested party.
In my humble view the evidence relating to proof of title goes to no issue in view of the decision in suit No C/89/94.
I resolve the issue against the Appellant and in consonance with Appellant’s issue the property known as and situated at No 22 Ekondo Street Calabar is not a family property but the property of the Respondent’s late husband.
I dismiss the appeal and order the Appellant to pay the sum of N30,000 as costs to the Respondent.
KUMAI B. AKAAHS, J.C.A: I had the privilege of reading in draft the judgment of my learned brother Ngwuta, JCA. I agree with his reasoning and conclusion that the appeal has no merit and should be dismissed. I wish to however express my opinion to emphasise the point made in the lead judgment.
The issue involved in this appeal is whether house No. 22 Ekondo Street, Calabar, is the family property (“Ndon” in Efik) of the family of late Madam Mary Bassey Effiom or it belonged to the estate of late Effiong Anana Inyang as represented by the Defendant. Also whether the pleadings and evidence adduced by the Defendant entitled her to a declaration being made on her behalf. Before entering judgment in favour of the Defendant, the learned trial Judge had found as follows at page 222 of the records:
“I have examined the exhibits there is no doubt that the property at 22 Ekondo Street, Calabar belongs to the late husband. Above all, when the case or Suit No C/88/94 presided by Hon. Justice J. A. Binang, it was the defendant who was appointed the Administratrix of the late husband’s property even though the plaintiff had applied to be considered for the appointment. This shows that it was the defendant who was the owner of the property and not the plaintiff as he claims that the defendant with 7 children is not the wife of the deceased brother. It is funny to hold that a lady who has 7 children to a partner is not the wife but only a girl friend.
He proceeded to hold as follows:
“I hold that the plaintiff has failed to establish that the house at No. 22 Ekondo Street, Calabar is a
family house and not that of the defendant. Being so, I enter judgment for the defendant as follows:-
1. That the House No. 22 Ekondo Street, Calabar is not the family house but of the family of late husband of the defendant.
2 That House No. 22 Ekondo Street, Calabar is the personal property of late Effiong Anana Inyang.
3 The plaintiff is hereby restrained by himself, servants, agents or otherwise from claiming or holding that the house No. 22 Ekondo Street Calabar is that, it is not family property but that of the defendant. I make no order as to costs”. (see pages 222-223 of the records).
For a clearer understanding on how the learned trial Judge reached his conclusion, it is necessary to reproduce the relevant pleadings on which the parties staked their case. The plaintiff averred as follows in paragraphs 3, 4, 5, 12, 13, 14 and 15 of the Statement of Claim:
“3 That Number 22 Ekondo Street, Calabar is the family house (NDON in Efik dialect) of the family of Late Madam Bassey Effiom. All the six children of Late Madam Bassey Effiom were born and grew up thereat.
It was initially a semi-permanent structure.
4.That in 1972/73 all the children of Late Madam Mary Bassey Effiom resolved to restructure that semi-permanent house into a two-storey building. All the children contributed in cash and kind and put up a sixteen bedroom house comprising eight rooms on the ground floor and eight rooms on the first floor.
5 That Late Effiong Anana Inyang though the youngest of the six children, was a successful businessman and more enlightened in the family. He was assigned the responsibility of making all the necessary contacts with the Municipal Council, Calabar for the construction of the house He also custodied all the documents in connection with No. 22 Ekondo Street, Calabar.
12 That unknown to the family members Effiong Anana Inyang secretly went and changed the ownership of No. 22 Ekondo Street, Calabar from that Madam Mary Bassey Effiong to that of Effiong Anana Inyang, to the exclusive of the rest of the family members.
13. That the discovery of this unauthorized fraudulent change of ownership of No. 22 Ekondo Street by late Effiong was made when an application was lodged by the plaintiff with the Cross River State Administrator General’s Office Ministry of Justice for the administration of the estate of late Effiong Anana Inyang who has died intestate.
14. That unknown to the family of the plaintiff, Effiong Anana Inyang with the connivance of some well-placed individuals in Calabar, had fraudulently forged certain documents with which he purportedly effected a change of ownership of the property of No. 22 Ekondo Street Calabar. That change was purportedly effected during the lifetime of Madam Mary Bassey Effiom, the mother of the six children including Effiong Anana Inyang himself.
15 That the fraudulent forged documents referred to in paragraph 14 of this Statement of Claim are,
(1) A conveyance made on 19th day of January, 1971 between Muri Mutiti Okon Etim Ededem the Muri of Efut Ekondo of 40 hart Street, Calabar (as Grantor) And Effiong Anana inyang of No. 9 Ebuka Street, Calabar (Grantee). The witnesses in this agreement are:
(i) chief Joseph Bassey Edem of 92 White House Street, Calabar.
(iij) Augustine Edem of 92 White House Street, Calabar, both for the “Grantor”
(i) Mrs. Christiana E. Inyang of 9 Ebuka Street, Calabar and
(iii) Bassey Anana Inyang of 22 Ekondo Street, Calabar, for the “GRANTEE”
Attached to that fraudulent agreement is a Survey Plan showing a purported “Landed Property of Mr. Effiong A. Inyang of Ekondo Street” (No. 22 Ekondo Street, Calabar). That Survey Plan No. is ERS/2572 12/1/71 and drawn by Okon E. Eyo, a Licenced Surveyor, Calabar These two documents were served on the Plaintiff in the course of both parties to this case trying to join issues for determining the real issues in this case. Those two documents (photocopies) are hereby pleaded and shall be heavily relied upon at the hearing of this case.
The defendant is hereby PUT ON NOTICE TO PRODUCE THE ORIGINALS of these documents for the inspection and use by the Plaintiff at the hearing of this case.
(2) AN AFFIDAVIT OF MARRIAGE deposed to by one Chief Archibong Ironbar which the Chief declared that he had given out his daughter Miss Christiana Archibong Ironbar (the defendant) to one Mr Effiong Anana Inyang of Oku Iboku Ikot Antuen in Itu Local Government Area of AKWA IBOM STATE of Nigeria,
This affidavit deposed to in the High Court of the Cross River State of Nigeria, in the Calabar Judicial Division was sworn before the Commissioner for Oaths on 15/4/1991.
That affidavit is hereby pleaded and shall be relied upon at the hearing of this case.
The defendant is hereby PUT ON NOTICE to produce same for inspection and use by the Plaintiff during the hearing of the case.
The Certificate of Occupancy No.CA/3345/89 issued to Effiong Anana Inyang inrespect of the land described and more particularly delineated in the Survey Plan No.EPS/2672 with an area of approximately 456.90 square yards at Ekondo Street, Calabar. The said certificate is dated 10th July 1989 and signed by the Military Governor, Cross River State, Ibim E. Princewill-NAVY CAPTAIN.
This document is hereby pleaded and plaintiff shall rely on it at the hearing of this case.
The defendant is hereby put on Notice to Produce the original of same for inspection and use by the plaintiff during the hearing of the matter. The defendant is custodying that Certificate.”
The averment regarding the fraudulent acquisition of documents in respect of the dispute property was denied by the defendant. She pleaded in paragraph 4 (a), 5(a) 7 (b) 6, 7 and 14 of the statement of Defence as follows:-
“4.(a) No. 22 Ekondo Street Calabar is the personal property of late Effiong Anana Inyang but now under the control and management of his wife (the Defendant). The plaintiff owns a house at Ikot Omin, Calabar, which late Effiong Anana Inyang built for him. He is collecting rents from it, yet he is still in illegal possession of No. 22 Ekondo Street Calabar despite the Defendant’s Letters of Administration and judgment in Suit No. C/89/94 entitling her to mange that estate.
5(a) The defendant also deny (sic) paragraph 4 of the Statement Claim. The defendant in reply aver (sic) that the land was originally leased by the Muri of Efut Ekondo to late madam Mary Bassey Effiom who built a thatched house thereon. In 1970 the said thatched house collapsed and rendered the land vacant. In accordance with the custom of the Efuts and the mutual understanding of the parties the ownership and possession of the vacant land reverted back to the owner – the Muri who was at liberty to lease/grant it to whoever he so desires.
(b) As at 1972/73 there was no building of any type that piece of land which could have been restructured. Upon the complete demolition of the aforesaid thatched house in 1970 and the land customarily reverting back to the owner, it was therefore leased back as a fresh grant to late Effiong Anana Inyang personally. The lease agreement dated 19th January 1971 between the owners (Muri Mutiti Okon Etim Ededem of Efut Ekondo) and late Effiong Anana Inyang is hereby pleaded and shall be relied upon.
6. Paragraph 5 of the Statement of Claim is only admitted to the extent that late Effiong Anana Inyang to was a successful businessman. That makes it possible to put up such a gigantic storey building at No. 22 Ekondo Street, now in dispute. Late Effiong was never assign (sic) with any responsibility of contacting Calabar Municipal Council or any other body for the purpose of construction of No. 22 Ekondo Street Calabar.
7. The Defendant also vehemently deny (sic) paragraph 6 of the Statement of Claim. The said building plan was fraudulently obtained. The particulars of fraud are as follows:
i) Late Madam Mary B.E. Effiom was illiterate and could neither read nor write.
ii) She did not thumb print the alleged building plan on the space provided for owner’s signature.
iii) The handwritten name of her name on the plan was not written by her.
iv) The alleged building plan is undated.
v) There is no illiterate jurat on the plan show (sic) that it was read and interpreted to her understanding.
We shall rely on the photocopy given to us by the plaintiff, but notice is given to the Plaintiff to produce the original.
14. Having acquired a parcel of land at No. 22 Ekondo Street, Calabar, upon which he built a storey building, late Effiong Anana Inyang perfected his title of executing or having the following documents:
a) A deed of conveyance dated 19 January, 1971 from the grantor and witness by the Defendant and Plaintiff’s elder brother – Bassey Anana Inyang.
b) He surveyed the land and obtained a certify (sic) copy of the Survey Plan No. ERS/2672 and dated 12th January, 1971.
c) He paid for and obtained a cash receipt acknowledging the payment of N2,000 from the grantor (Muri of Efut Ekondo).
d) He paid for and was issued with a government receipt No. B 77775 and dated 27/8/79 being acknowledgment of payment in respect of certificate of occupancy.
e) Finally late Effiong obtained a Certificate of
Occupancy No. CA/3345/89 and dated 10th July, 1989. All these documents are hereby pleaded and shall be relied upon at the trial.”
As the Pleadings stood the burden was on the appellant to proof what he alleged in paragraph 14 of the Statement of Claim i.e. that his deceased brother, Effiong Anana Inyang forged Exh. “L” to effect a change of ownership of the property No. 22 Ekondo Street in his favour. During the course of trial Exhibit “F” (containing the proceedings and judgment in Suit No. C/89/94) was tendered where the present respondent had successfully contested the claim that No. 22, Ekondo Street, Calabar was not family property but the personal property of her late husband and she was therefore entitled to apply for Letters of Administration to administer his estate including No. 22 Ekondo Street. The present appellant was aware of that suit but did not apply to be joined as one of the defendants. In his words; “it was the lawyer for Administrator General who stopped me from testifying in the case” (see page 168 II 3 – 4 of the records).
This was when the damage was done to the appellant’s case. The appellant neither applied to join in the suit as a defendant nor did he appeal as an interested party since he surrendered the estate of late Effiong Anana Inyang to the Administrator-General to manage and the present respondent challenged the surrender including the dispute as to the ownership of No. 22 Ekondo Street. Brenda, one of the daughters of Effiong Anana Inyang testified in C/89/94 as DW2 and she identified No. 22 Ekondo Street as one of the properties belonging to her late father and Mr. Henry Eso Efa who testified for the appellant as PW2 agreed under cross-examination that Brenda should have known of her father’s property more than him (see p. 176 line 9 -10).
Since the issue at slate was whether house No. 22 Ekondo Street, Calabar was family property or personal property belonging to late Effiong Anana Inyang, the learned trial Judge properly dealt with the issue when he proceeded to enter judgment for the defendant and made the following orders
1. That the House No. 22 Ekondo Street, Calabar is not the family house but of the family of late husband of the defendant.
2. That House No. 22 Ekondo Street, Calabar, is the personal property of late Effiong Anana Inyang.
I consider the third relief, although not specifically asked for by the defendant to be a consequential relief.
I find that the appeal lacks merit and it is accordingly dismissed.
I also award costs of N30,000.00 in favour of the Respondent against the Appellant.
JA’AFARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment of my Learned Brother Ngwuta, JCA. I agree with the reasons in it and the conclusion reached thereof. The appeal lacks merit and I dismiss it.
I award the same costs as in the lead judgment in favour of the Respondent against the appellant.
The appeal is dismissed.
Appearances
Chief G. A. Udousoro with F. E. Ekanem and A. U. AkpanFor Appellant
AND
Atim Egba Atim with Amaka NwankwoFor Respondent
