MR. EGAR EGAR AJAR & ANOR v. MR. BASSEY AYIP (2016)

MR. EGAR EGAR AJAR & ANOR v. MR. BASSEY AYIP

(2016)LCN/8190(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of February, 2016

CA/C/276/2013

RATIO

COURT: JURISDICTION; WHETHER PARTIES OR THEIR COUNSEL CAN BY CONSENT CONFER JURISDICTION WHERE A COURT LACKS IT

It is conceded though that where a Court lacks jurisdiction, parties or their counsel cannot by consent confer jurisdiction.
See DONGTOE VS CIVIL SERVICE COMMISSION OF PLATEAU STATE (2001) 6 NSCQLR 328. It is certainly not open to parties to maintain a different case on appeal from that presented before the lower Court. See OREDOYIN V AROWOLO (1989) 4 NWLR (pt 114) 172, EDEBIRI VS EDEBIRI (1997) 4 NWLR (PT 498) 165 at 174 and INTERNATIONAL MESSENGERS (NIG) LTD VS PEGOFOR INDUSTRIES LTD (2005) 22 NSQR 322 at 336. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

AN ISSUE RAISED SUO MOTU: WHETHER THE PARTIES SHOULD BE INVITED TO MAKE THEIR INPUTS WHEN AN ISSUE IS RAISE SUO MOTU BEORE THE COURT PROCEEDS TO DETERMINE THE ISSUE

The issue was raised suo motu by the Court below in the judgment without any input from counsel representing the two sides. This is totally improper and unacceptable. Fair hearing demands that when an issue is raised suo motu by the Court, the parties should be invited to make their inputs before the Court proceeds to determine the issue. See I.M.B. SECURITIES PLC vs BOLA TINUBU (2001) 8 NSCQLR 1 at 14, HALILCO NIGERIA LTD vs EQUITY BANK OF NIGERIA LTD (2013) 54 NSCQR 339 and AKERE & ORS VS GOV. OF OYO STATE (2012) 50 NSCQR 345. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

PRIVY: THE DEFINTION OF THE TERM ‘PRIVY’

Black’s Law Dictionary defines a privy as;
A person having a legal interest of privity in any action, matter or property: a person who is in privity with another. Traditionally, there were six types of privies;
(1) privies in blood, such as heir and ancestor…The term also appears in the con of litigation. In this sense, it includes someone who controls a lawsuit though not a party to it; someone whose interests are represented by a party to the lawsuit, and a successor in interest to anyone having a derivative claim. See BLACK?S LAW DICTIONARY 8TH Edition, 1238. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

ACTION: ACTION IN PERSONAM AND ACTION IN REM; THE MEANING OF ACTION IN PERSONAM AND ACTION IN REM

Action in personam has been described as (1) an action brought against a person rather than property…(2) an action in which the named defendant is a natural or legal person.
In contradistinction is an action in rem which is an action determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property.
SeeBLACK’S LAW DICTIONARY (supra) at page 32.
A perusal of the claim submitted for adjudication by the respondent clearly indicates that the subject-matter of the dispute is a farmland and was not in personam but in rem and accordingly capable of surviving the named parties.
see OGUIGO vs OGUIGO (1999) 12 SC 191 and PROF OLUFEAGBA & ORS vs PROF ABDUL-RAHEEM & ORS (2009) 40 NSCQR 684. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

COURT: JURISDICTION; THE MEANING OF JURISDICTION

According to UTHMAN MOHAMED, JSC:
By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. See ABEL ISAIAH & ORS VS SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LTD (2001) 6 NSCQLR 542 at 551. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

COURT: WHEN CAN AN APPELLATE COURT INTERFERE WITH THE FINDINGS OF FACT

The position of the law is well settled now that unless findings of fact are perverse, based on inadmissible evidence, not supported by admissible evidence or emanating from unreasonable conclusions, the appellate Court should not interfere. See MAKINDE & ORS VS AKINWALE & ORS (2000) 1 NSCQLR 120, AHMED VS THE STATE (1988) 9 NWLR (PT. 566) 389, NZIWU VS ONUORAH (2002) 9 NSCQR 174 and OYEWOLE VS AKANDE (2009) 39 NSCQR 207. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

JUSTICES

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

Between

1. MR. EGAR EGAR AJAR
2. EGAR FRIDAY SAMUEL Appellant(s)

AND

MR. BASSEY AYIP Respondent(s)

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is in respect of an appeal against the judgment of the High Court of Cross River State, Ikom Judicial Division, delivered on the 8th of July, 2013 by Eneji, J.

The case arose out of a dispute in 2010 between two family members of the Nebom Family of Nde 3 Corners, Ikom, Ikom Local Government of Cross River State, over a piece or parcel of farmland called Akpanga Ekawon Farm Land situate at Mbofam along Nde Town Road, Nde, in Ikom Local Government of Cross River State.

The trajectory of the said dispute began at the District Customary Court of Nde/Nkum holden at Mgbaka, Cross River State where the present respondent commenced action against late Chef Egar Aja, the now deceased father of the appellants in this appeal.

At that Customary Court, the relief sought by the respondent was captured on page 3 of the record of appeal simply as follows;
The plaintiff’s claim against the defendant for an injunction restraining the defendant, agents, servants, privies from further entry doing any manner of work in plaintiff?s farmland known and called Akpangha Ekawon

Farmland situated at Mbofan Along Nde Town Road.

The attempt by the family of the parties to amicably resolve the dispute failed and the Customary Court proceeded on a full trial which resulted in a verdict in favour of the respondent on the 4th April, 2011.

The appellants’ late father then proceeded on appeal against the said decision to the Chief Magistrate Court, Ikom. From the application to the said Chief Magistrate Court on pages 21-24 of the record of appeal, the appellants were substituted for their father who died on the 2nd day of March, 2012 while his appeal before that Chief Magistrate Court was pending.

Before the Chief Magistrate Court, the appellants were partly successful as the said Court in its judgment delivered on the 4th October, 2012 awarded them the portion of the said farmland said to have been previously occupied by their late father without challenge including the agric palms and economic trees.

?Dissatisfied with this, the respondent proceeded on further appeal to the High Court of Cross River State, which appeal was heard by Eneji J. of its Ikom Division. In the verdict delivered on the 8th of July, 2013, his

lordship allowed the appeal, set aside the decision of the Chief Magistrate Court and restored the decision of the District Customary Court.

Peeved by the said verdict, the appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 5th August, 2013 containing 3 grounds. The said Notice of Appeal was amended via the Amended Notice of Appeal filed on the 13th October, 2015 but deemed properly filed and served on the 21st October, 2015 still containing 3 grounds.

At the hearing of the appeal, Mr. Eyo, the learned counsel for the appellants adopted the appellants’ brief filed on the 13th November, 2015 as well as the appellants’ reply brief filed on the 13th November, 2015 but deemed properly filed and served on the 8th February, 2016 as the appellants’ arguments in furtherance of this appeal.

Therein the appellants distilled and argued 3 issues for determination as follows:
1. Whether the learned High Court Judge was right to have held that an application which was wrongly captioned joinder but contained the prayer for substitution was incompetent and was granted without jurisdiction.
2. Whether a land

matter does not survive a deceased appellant who was sued with his family as in this case and whether the children of the deceased appellant cannot be substituted to continue with the appeal.
3. Whether the learned High Court Judge was right to have held that in the exercise of the appellate jurisdiction, the learned Chief Magistrate was wrong to have re-evaluated the evidence and made consequential orders by modifying the judgment of the trial District Court by partly affirming the judgment and setting aside the orders made without jurisdiction.

For the respondent, his learned counsel, Miss Otto adopted the respondent’s brief filed on the 13th November, 2015 but deemed properly filed and served on the 8th February, 2016 as the arguments of the respondent in contesting this appeal.

Therein, the respondent adopted the issues for determination formulated and argued by the appellants.

Considering the formulated issues and the arguments canvassed in respect thereof, the first two issues shall be taken together. These issues are;
Whether the learned High Court Judge was right to have held that an application which was wrongly captioned

joinder but contained the prayer for substitution was incompetent and was granted without jurisdiction. And Whether a land matter does not survive a deceased appellant who was sued with his family as in this case and whether the children of the deceased appellant cannot be substituted to continue with the appeal.

Arguing these issues, Mr. Eyo submitted that the relief sought in the application for substitution before the learned Chief Magistrate Court was grantable despite the error made in the heading and that the unreported decision of this Court relied on by the Court below was distinguishable as technicalities should not be allowed to defeat the ends of justice. He referred to EKPUK vs OKON (2002) FWLR (PT 84) 145 at 149, OBIORA VS OSELE (1989) 1 NWLR (PT 97) 279 at 283, FAYEMI vs ONI (2009) 8 WRN 103 at 109 and ATIKU VS YAR’ADUA (2008) 14 WRN 1.

He further submitted that the dispute herein involves land and survives the parties by the nature thereof. He referred to OLUFEAGBA VS ABDUL-RAHEEM (2010) 17 WRN 23 at 38

?On her part, Miss Otto for the respondent submitted that the action of the appellants’ late father was in personam and died with

him thereby leaving no opportunity for the appellants to join or be substituted about a year after he died, thereby depriving the learned Chief Magistrate of the jurisdiction to grant the appellants’ application. He referred to COTECNA INTERNATIONAL LTD VS CHURCHGATE NIG LTD (2011) ALL FWLR (PT 575) 255.

She submitted that the course open to the appellants was to file their appeals as interested parties but not to continue the action of their late father.

The attempt by the appellants to respond to this issue in the Reply brief, was totally off tangent and is accordingly discountenanced.

The record of what transpired before the Chief Magistrate Court when the motion which brought the appellants into the matter was taken and granted would assist a great deal in untying the Gordian knot herein presented. This can be found on pages 54-55 of the record of appeal as follows;
Counsel: J.A. Eyo for the Appellant.
J. A. Otto (Miss) for the Respondent.
Counsel for the Appellant J.A. Eyo Esq said that this is an Application to substitute the Appellant on record with Mr. Egar Egar Ajar and Mr. Egar Friday Samuel and family as appellants
2.

An Order striking out the name of Late Chief Egar Ajar.
3. For any other Order(s) as this Honourable Court may deem fit to make in the circumstances of this case.
The motion is supported with a 9 Paragraph Affidavit.
Counsel for the Respondent J. A. – Otto (Miss) said she is not opposing.
RULING
Upon this Motion on Notice coming before me praying for leave to substitute the Appellant Late Chief Egar
Ajar with Mr. Egar Egar Ajar and Mr. Egar Friday Samuel and family as Appellants and
2. An order striking out the name of Late Chief Egar Ajar, Counsel for the Respondent J. A. Otto (Miss) not opposing and having satisfied myself with the depositions in the affidavit in support of the motion, this motion is hereby granted as prayed.
Accordingly, Mr. Egar Egar Ajar and Mr. Egar Friday Samuel family are hereby substituted as Appellants in this case.
The name of Late Chief Egar Ajar is hereby struck out.

?It is instructive that counsel on record in this appeal were the same counsel before the learned Chief Magistrate on the said 10th April, 2012 when the order of substitution was made with the learned counsel for the

respondent consenting to the application. It is conceded though that where a Court lacks jurisdiction, parties or their counsel cannot by consent confer jurisdiction.
See DONGTOE VS CIVIL SERVICE COMMISSION OF PLATEAU STATE (2001) 6 NSCQLR 328.

It is certainly not open to parties to maintain a different case on appeal from that presented before the lower Court. See OREDOYIN V AROWOLO (1989) 4 NWLR (pt 114) 172, EDEBIRI VS EDEBIRI (1997) 4 NWLR (PT 498) 165 at 174 and INTERNATIONAL MESSENGERS (NIG) LTD VS PEGOFOR INDUSTRIES LTD (2005) 22 NSQR 322 at 336.

In fairness to the respondent who was the appellant before the Court below, he did not revisit this issue and none of the parties did. The point was not included in any of the grounds of appeal as can be seen in the Amended Notice of Appeal filed before the lower Court on 14th February, 2013 and contained on pages 128-130 of the record of appeal. It also did not form part of the issues formulated by either side in their written arguments before that Court.

The issue was raised suo motu by the Court below in the judgment without any input from counsel representing the two sides. This is

totally improper and unacceptable. Fair hearing demands that when an issue is raised suo motu by the Court, the parties should be invited to make their inputs before the Court proceeds to determine the issue. See I.M.B. SECURITIES PLC vs BOLA TINUBU (2001) 8 NSCQLR 1 at 14, HALILCO NIGERIA LTD vs EQUITY BANK OF NIGERIA LTD (2013) 54 NSCQR 339 and AKERE & ORS VS GOV. OF OYO STATE (2012) 50 NSCQR 345.

This notwithstanding, I shall proceed further to the substance of this issue and consider whether the error of the Court below ended with the manner the said issue was taken.

In that wise, a perusal of the earlier mentioned claim submitted by the respondent as plaintiff before the District Customary Court becomes apposite at this stage. It contains as follows:
The plaintiff?s claim against the defendant for an injunction restraining the defendant agents servants, privies from further entry doing any manner of work in plaintiff’s farmland known and called Akpangha Ekawon Farmland situated at Mbofan Along Nde Town Road. (underlining mine).

The underlined words indicate that the defendant, the late Chief Egar Ajar was sued along with his

agents, servants and privies. The appellants in their application granted by the learned Chief Magistrate described the deceased defendant as their father. As his children, they could not be considered agents or servants but they would come within the precincts of privies.

The assertion of the appellants in paragraph 7 of the affidavit in support of the said application that they were familiar with the facts of the case having participated in the visit to the locus in quo is corroborated by the inspection report of the said visit on pages 14-15 of the record of

appeal.

In the entire circumstances therefore, the appellants as privies of their late father were already parties to the litigation and could not be properly considered strangers to it as was done by the Court below.

Going further, it was submitted that the action initiated by the respondent as plaintiff against the appellants’ late father was in personam and died with him.

ABDUL-RAHEEM & ORS (2009) 40 NSCQR 684.

The implication thereof is that contrary to the suo motu conclusion of the Court below, the learned Chief Magistrate was not deprived of jurisdiction in any form or manner when he granted the other substituting the appellants for their deceased father as appellants in the appeal before him and that the said action survived the said deceased.

The facts, subject-matter and entire circumstances of this case are totally at variance with those in the decision of this Court in GOVT OF CROSS-RIVER STATE & ORS VS ASSAM (a case involving personal remuneration) referred to by the Court below.

I therefore resolve the two issues in favour of the appellants and against the respondent.

The remaining issue is:
Whether the learned High Court Judge was right to have held that in

the exercise of the appellate jurisdiction, the learned Chief Magistrate was wrong to have re-evaluated the evidence and made consequential orders by modifying the judgment of the trial District Court by partly affirming the judgment and setting aside the orders made without jurisdiction.

Arguing this issue, Mr. Eyo submitted that contrary to the position taken by the Court below, the learned Chief Magistrate was right in law to have re-evaluated the adduced evidence and to have modified the orders made in line with the justice of the case. He referred to Section 51 (a) of the Customary Courts Law of Cross River State, Cap C21, EKPENYONG VS NYONG (2003) 51 WRN 44 at 47, EKPUK VS OKON (2002) FWLR (PT 84) 145, OGBHON VS REGD TRUSTEES CCCG (2001) FWLR (PT 80) 1496 at 1502, IWUOLA vs NIPOST LTD (2003) FWLR (PT 160) 1535 at 1541 and JOHN vs BLAKK (2002) FWLR (PT 95) 320.

Miss Otto on her part responded that this issue was based on an obiter and not an appealable decision and should accordingly be dismissed. She referred to A.C.N. vs NYAKO (2013 ALL FWLR (pt 696) 435, C.P.C. vs INEC (2012) ALL FWLR (pt 617) 611 and FRCN vs NWANKWO (2012) ALL FWLR (PT 641)

1559.

Mr. Eyo did not respond to this argument in his Appellants’ Reply brief.

An examination of the judgment of the Court below reveals that the ratio of the said judgment had been covered by issues 1 and 2. Issue 3 relates to the aspect of the judgment expressly stated by his lordship of the Court below to be obiter remarks. The law is trite that obiter remarks not being part of the ratio decidendi cannot be appealed against. See NDIC VS OKEM ENTERPRISES LTD & ANOR (2004) 18 NSCQR 42 at 116.
The said issue is accordingly incompetent and it is therefore struck out.

This does not however conclusively conclude this appeal as the appellants seek a consequential relief dismissing the respondent’s appeal filed before the lower Court.

Considering that the lower Court did not touch upon the merits of the issues for determination submitted by both sides in the appeal before it and since the lower Court was not the trial Court, this Court is in a good enough position to examine the notice of appeal filed and the arguments of counsel and give the necessary orders as the lower Court would have done. See NNORODIM vs EZEANI (2001) 5 NSCQLR

510.

In the best interest of justice, I shall proceed accordingly.

The amended notice of appeal of the respondent as appellant before the lower Court containing 4 grounds as earlier mentioned, is on pages 128-130 of the record of appeal.

For ease of reference, the respondent shall henceforth be referred to as respondent/appellant while the appellants shall be referred to as the appellants/respondents.

The written argument of the respondent/appellant is on pages 139-144 while that of the appellants/respondents is on pages 151-164 of the record of appeal.

The respondent/appellant submitted 2 issues for determination as follows:
1. Whether the Chief Magistrate’s Court, Ikom Magisterial District approach to the appellant’s claim(s) was right in law when it held that the trial Court was wrong when it granted the plaintiff/respondent/appellant judgment for declaration of title to land over all that piece or parcel of land belonging to late Akpangha Ekawon, appellant?s great grand father and descendant of Akpangha Ekawon, which land is known and called as Akpangha Ekawon’s land situate of Mbofam, along Nde Town Road, Nde Three

Corners, Ikom, Cross River State.
2. Whether the approach of the Chief Magistrate sitting on appeal in this matter was right setting aside the judgment of the trial Court and declaring appellant?s father’s land as Nebom Family land in spite of acknowledging that the land belongs to Akpangha Ekawon and that appellant is his direct descendant.

The appellants/respondents adopted the said issues in a modified form as follows:
1. Whether the learned Chief Magistrate Court, Ikom was wrong by modifying and varying the judgment delivered by the trial District Court in the exercise of the appellate jurisdiction by setting aside the gratuitous awards made by the trial District Court in favour of the appellant and awarding the parcel of land in contention to the appellant.
2. Whether the appellate Chief Magistrate in the exercise of the appellate jurisdiction can rehear, re-evaluate evidence, ascribe probative value and make proper findings as to the status of the land when the trial District Court had failed to properly evaluate the evidence.

?Arguing the issues together the learned counsel for the respondent/appellant submitted that the

modification made by the learned Chief Magistrate was not supported by the evidence on record and that the late father of the appellants/respondents had no counter-claim which could form the basis of any award to him or his successors.

He further submitted that the possession attributed to the appellants/respondents by the learned Chief Magistrate was insufficient to defeat the better title of the respondent/appellant. He referred to MOGAJI VS CADBURY NIG LTD (1985) 2 NWLR (PT 7) 395, AGAKA VS AYILARA (2012) ALL FWLR (PT 606) 907 and OYEKAN VS OYEWALE (2012) ALL FWLR (PT 623) 1994.

He urged the Court to hold that there was no basis to interfere with the evaluation made by the District Customary Court by the learned Chief Magistrate.

For the appellants/respondents their learned counsel submitted that the learned Chief Magistrate was within legal bounds in rehearing the case and modifying the orders made by the District Customary Court and referred toEKPENYONG VS NYONG (2003) 51 WRN 44 at 41, EKPUK vs OKON (2002) FWLR (PT 84) 145, OGBHON VS REGD TRUSTEES CCCG (2001) FWLR (PT 80) 1496 at 1502.

?Learned counsel further submitted that although

evaluation of evidence and ascription of probative value was within the province of trial Courts, an appellate Court would in appropriate cases interfere as was properly done by the learned Chief Magistrate in this case. He referred toIWUOLA VS NIPOST LTD (2003) FWLR (PT 160) 1535 at 1541 and JOHN VS BLAKK (2002) FWLR (PT 95) 320.

He urged the Court to uphold the judgment of the learned Chief Magistrate.

The judgment of the learned Chief Magistrate is on pages 122-123 of the record of appeal as follows:
In the final analysis, I hereby find and hold that the Judgment of the trial District Court is affirmed only to the extend (sic) that the Plaintiff/Respondent is only entitled to the farmland which the Defendant forcefully and illegally entered and cleared for farming purposes that led to this case.
The Agric Palms and Economic Crops of the Defendant that the District Court suo motu awarded to the Plaintiff is not covered by this Order.
The Defendant/Appellants shall continue to control his Agric Palms and Economic Crops together with previous farms apart from the farm that let (sic) to this case.
All other members of Nebom

family that are in the said parcel of land (sic) that are not party to this case shall not be disturbed.
They shall continue to manage their farms.
The order that the defendant is allowed up to December 31st, 2011 to finally pack wt of Plaintiff’s land is hereby set aside. Cost of N1,500.00 awarded by the trial District Court against the defendant is affirmed.
The Plaintiff/Respondent who is the great grand son of the founder Chief Akpanga Ekawon or who claimed as the maternal relation of the founder should learn to accommodate the brothers of the founder of the said land or true and faithful servants of the founder as the case may be together with the entire Nebom family members that both parties in this case belongs. Order 7 of the trial District Court hereby affirmed.
In sum this appeal partially succeed and I so hold.

According to the respondent/applicant, the re-appraisal of evidence done by the learned Chief Magistrate before arriving at the above stated decision erroneously concluded without any foundation in the adduced evidence on record that the land in dispute belonged to the entire Nebom Family and that the original

defendant, the late father of the appellants/respondents was in justifiable possession of a portion of the land since 1984 and had planted agric palms and other economic crops thereon as he was a faithful servant or descendant of the original founder, late chief Akanga Ekawon.

The appellants/respondents obviously see nothing wrong with the position taken by the learned Chief Magistrate.

The account of what transpired at trial before the District Customary Court, Nde/Nkum is on pages 2-16 of the record of appeal. Before that Court, 2 witnesses testified for the plaintiff now respondent/appellant with him as the first witness while the defendant, the late father of the appellants/respondents was the sole witness for his case.

?The case presented by the respondent/appellant and his witness was that the land with clearly described boundaries originally belonged to their grandfather late Chief Akpanga Ekawon who acquired it personally outside his Nebom family. The land was cared for by another member of the extended family late Ebora Eka who served late Chief Ekawon faithfully with the instruction to hand over the said land to Chief Ekawon’s

descendants when they came of age. The late Ebora Eka handed over the land as instructed upon which the respondent/appellant entered the said land in 1990 to meet the late Chief Ega Aja, father of the appellants/respondents thereon who had entered the land on the demise of late Ebora Eka and was planting economic crops thereon. This resulted in regular conflicts necessitating the action to evict the late Chief Ega Aja. He conceded that the late Chief Ega Aja, father of the appellants was a member of the extended Nebom family but of a different section while the land was exclusively that of Akpangha Ekawon section.

On his Part, the late Chief Ega Aja, father of the appellants/respondents expressly conceded that the land belonged to late Chief Akpanga Ekawon.
In his words as recorded on page 10 lines 5-6 of the record of appeal;
One day I asked my mother who owned the land and she told me it belonged to one late Chief Akpanga Ekawon.

When asked of his relationship with the said late Chief Akpanga Ekawon, he answered;
We are of the same African extended family.

On page 15 the trial District Customary Court recorded the following

observations from the visit to the locus in quo;
While this matter yet to be resolve(sic): defendants sons (Ega Aja and Aya Ega Aja) went on with their farming activities viz: clearing, burning, planting yam farms and even felling palms for tapping, thereby contravening the interlocutory injunction order.
Defendant’s sons admitted they planted the last agric palms in October/November, 2010 covering about five (5) hectares.
The said Court then outlined its findings as follows:
1. The Nebom family resolutions/Decisions tendered in Court by Esoso Asinya dated 12/4/2010 was a calculated attempt to rub (sic) the plaintiff of his legacy.
2. The Honorable Court, through investigations rightly confirmed that the land in dispute belongs to late Chief Akpanga Ekawon.
3. In Nde Custom/Tradition, defendant being an extended African family member of Nebom family, has no right of inheritance as it concerns late Chief Akpanga Ekawon’s property including farm land as confirmed by the defendant himself as a custodian of the law (see cross exam. Questions to defendant from Court Nos 4 to 6 (four, five and six).
4. The Honourable Court finally

saw from forgone submissions etc. that the plaintiff is a direct descendant of late Chief Akpanga Ekawon and is therefore entitled to his inheritance.

A juxtaposition of these findings with the adduced evidence shows abundantly and palpably that they flow from and accord with the evidence.
One is at a loss as to fathom the basis for the interference of the learned Magistrate Court with these findings and the orders emanating therefrom.

The late Chief Egar Aja, father of the appellants herein, did not counter-claim for the disputed land, he did not give the dimensions of the land he occupied and never claimed any ties to the original owner of the land late Chief Akpanga Ekawon, other than the nebulous assertion of ‘extended African family’, whatever that may imply.

NSCQR 174 and OYEWOLE VS AKANDE (2009) 39 NSCQR 207.

The conclusions reached by the learned Chief Magistrate were unsupported by the evidence on record thereby fatally affecting his conclusions.

I therefore conclude by allowing the appeal of the respondent/appellant in HM/SA/2012.
I accordingly set aside the judgment of the learned Chief Magistrate Court holden in Ikom, Cross River State delivered on 4th October, 2012.

I restore and affirm the judgment of the District Customary Court of Nde/Nkum holden at Mgbaka delivered on 4th October, 2011 in Suit No NND6/2010.

Parties shall accordingly bear their respective costs

ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity of reading in advance a copy of the Judgment delivered by my learned Brother, J.O.K. Oyewole, JCA, in draft form, allowing this appeal.

The issues raised in this appeal have been comprehensively addressed. I am in agreement with his reasoning and conclusion, which I adopt as mine. I abide by the orders made in the lead Judgment.

PAUL OBI ELECHI, J.C.A.: I had the privilege of reading in draft, the Judgment just delivered by my Learned

brother J. O. K Oyewole, JCA allowing this appeal.

?My brother has exhaustively addressed all the issues raised for determination and resolved same meritoriously. I am in full agreement with the reasoning and conclusion which I hereby adopt as mine in allowing the appeal as being meritorious. I also abide by the Orders made in the lead Judgment.

Appearances

J. A. Eyo, Esq.For Appellant

AND

MISS. J. OttoFor Respondent