CHIEF HENRY ASUQUO ETIM & ORS
MR. N.E.O. ETTA & ORS
IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 6TH DAY OF JULY, 2012
BEFORE THEIR LORDSHIPS
UZO I. NDUKWE-ANYANWU, J.C.A
JOSEPH TINE TUR, J.C.A
ISAIAH OLUFEMI AKEJU, J.C.A
1. CHIEF HENRY ASUQUO ETIM
2. MR. EKPO DANIEL ETIM
3. CHIEF ETIM ASUQUO BASSEY
(For themselves and on behalf of Oqua Royal Family of Ikpai Qua Town, Calabar) Appellant(s)
1. MR. N.E.O. ETTA
2. MR. LAWRENCE EDET ETTA
(For themselves and on behalf of Ebed Family of Big Qua Town, Calabar)
3. MR. EMMANUEL EKPE
4. CHIEF PATRICK A.O. EDEM
5. HON. STEPHEN BASSEY
6. SIR FRANCIS ANSA (KSJ)
(For themselves and on behalf of Kasuk Qua Clans, Calabar) Respondent(s)
Essien H. Andrew & Edem John For Appellant
Patrick Ofem - for the 1st & 2nd Respondents.
Chief O.N. Egodo & E.J. Oghenejakor with Mrs. I.
Ironbor - for the 3rd Respondent.
Mrs. N.E. Ene - for the 4th - 6th Respondents. For Respondent
Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment):
The Appellants represent the Oqua Royal Family of Ikpai Qua Town Calabar and were the plaintiffs before the High Court of Justice, Cross River State, Calabar in suit No. HC/461/2003. They instituted a suit against the 1st-3rd Respondents who represent the Edet Family also of Big Qua Town, Calabar. The 4th-5th Respondents are from Kasuk Qua Clans, Calabar. The suit was initially initiated by the appellants against the 1st-3rd Respondents on 8th October, 2003. In the course of proceeding some of the parties died which necessitated their being substituted by order of the lower Court. The writ and statement of Claim and defence were subsequently amended. Trial proceeded when the 4th-6th Respondents applied and were joined by an order of the court made on 22nd June, 2011. Being aggrieved with the order of joinder the appellants filed an appeal against the ruling of the learned trial Judge on 23rd June, 2011 followed by a brief of argument on 19th September, 2011. An amended Notice of Appeal was filed on 19th September, 2011 and deemed as properly filed and served on 2nd April, 2012. The 1st-3rd Respondents did not participate in this appeal though served the processes hence they did not file any brief of argument. 1st and 2nd Respondents were represented at the hearing of the appeal on 11th June, 2012 by Patrick Ofem Esq. while Chief O.N. Egodo Esq. appeared for the 3rd Respondent. Both Counsel informed this Court they were nominal parties.
Nevertheless they supported the appeal of the appellants.
The 4th-6th Respondents filed a Joint Brief of argument on 14th October, 2011. Both counsel adopted their respective briefs of argument on 11th June, 2012 when this appeal came up for hearing. From the two grounds of appeal filed a lone issue for determination was adopted by the learned Counsel to the 4th-6th Respondents. To wit:
"Whether in the circumstances of this case the trial Court was right to grant the 4th- 6th Respondents leave to join this suit as defendants/counter-claimants."
Before attempting to answer this lone issue may I briefly capitulate the facts that led to this appeal.
By the Further Amended Statement of Claim filed with leave of Court on 1st April, 2009 the parties were as follows:
"1. CHIEF HENRY ASUQUO ETIM - CLAIMANTS
2. MR. EKPO DANIEL ETIM
3. CHIEF ETIM ASUQUO BASSEY
(For themselves and on behalf of Oqua Royal
Family of Ikpai Qua Town, Calabar)
1. MR. N.E.O. ETTA - DEFENDANTS
2. MR. LAWRENCE EDET ETTA
(For themselves and on behalf of Ebed Family of Big Qua Town, Calabar).
3. MR. EMMANUEI EKPE"
The 3rd defendant filed an Amended Statement of Defence on 20th May, 2009. The 1st and 2nd Defendants also filed a Joint Statement of Defence on 20th May, 2009. The plaintiffs/appellants filed a Reply to 1st and 2nd Defendants Amended statement of Defence on 29tn September, 2009.
The appellants' sought the following reliefs in their Further Amended Statement of Claim against the 1st-3rd Respondents:
"Wherefore the Claimants claim against the Defendants jointly and severally as follows:
(i) A declaration that the Claimants are entitled to the statutory right of occupancy to all that land Known as Agbanakaba, which is more particularly delineated and edged red in Survey Plan No. EE/CR/2070/2001 drawn by E. Ekpenyong (a surveyor) and dated the 18th day of December, 2001 and in Survey Plan No. ZAP/890 LD filed by the Claimants in this suit.
(ii) Ten Million Naira being general damages for trespass against the defendants in that they broke into and entered the Claimants land and began the erection of a building thereon without the authority, consent or approval of the Plaintiffs.
(iii) An order of perpetual injunction restraining the Defendants by themselves, their servants, agents or privies from entering the said land to build on it, or carry out any other act of trespass thereon."
On 29th October, 2010 the following persons applied by motion on Notice to be joined in the suit as 4th-6th Respondents, namely:
"4. CHIEF PATRICK A.O. EDEM - PARTIES SOUGHT TO BE JOINED/APPLICANTS
5. HON. STEPHEN BASSEY
6. SIR FRANCIS ANSA (KSJ)
(for themselves and on behalf of Kasuk Qua Clans, Calabar). "
They prayed for the following reliefs:
"(i) Joining the applicants as Defendants/counter-claimants in this suit, representing the interest of themselves and Kasuk Qua Clans of Calabar.
(ii) Amending all further Court processes to reflect this joinder.
(iii) Deeming the statement of Defence and written statement on oath, etc, attached as properly filed, served and sufficient for this trial.
AND for such further order or other orders as this Honourable Court may deem it fit to make in the circumstances of this case."
The reasons given for seeking to be joined in the suit were set out in a 14 paragraph affidavit deposed to by Chief Patrick Agbor O. Edem a principal member and family head of Kasuk Qua Clans. Paragraphs 3-14 which reads as thus:
"3. That I was in Court sometime this year, when I heard this suit being mentioned and further enquires by me showed that it concerned part of Kasuk lands.
4. That I applied and upon receiving the processes it was discovered that the same set of claimants had instituted an action against Kasuk Qua Clans, which the applicants represent, in suit No. HC/343/2002, using the same plan No.EE/CR/2070/2007 drawn by E. Ekpenyong. A copy of the statement of claim in HC/343/2002, is attached as exhibit "APP-1", hereto.
5. That it was further discovered that the present suit is between the same set of Claimants over the same piece of land but with different defendants.
6. That the Claimants who have not seriously pursued suit No. HC/343/2002, now want to obtain judgment over the said land against parties who are not representatives of Kasuk Qua Clans.
7. That it is my belief that they want to use the outcome of this suit to affect HC/343/2002.
8. That the applicants are necessary parties to be joined in this suit so that it can be heard on the merit and be finally concluded.
9. That whatever decision this Honourable Court reaches will affect the interest of the applicants.
10. That the applicants do not want to be accused of standing by while a case was being fought over their lands.
11. That I believe that it is in the interest of justice that the applicants' motion be granted.
12. That the applicants have attached their statement of defence and other necessary documents to ensure hearing without delay.
13. That the Claimants and defendants will not be prejudiced by this application which is to allow this matter be heard on the merit
14. That I depose to this affidavit conscientiously and in good faith believing same to be true and correct and in accordance with the Oath Act."
Paragraphs 24-29 of the counter-claim read thus:
"24. The Defendants as Counter-claimants repeat the averments in paragraphs 1 to 23, of this Statement of Defence.
25. The claimants and the 1st and 2nd Defendants being aware of the land ownership by the Kasuk people and their involvement in protracted land disputes with some of their tenants proceeded to create factions within Kasuk and to surreptitiously divide Kasuk lands including the land in dispute between themselves. They are(sic) narrated their acts of trespass in paragraphs 9, 13, 15, 16, 17, 18, 19, 20, 27, and 22 of the Statement of Claim.
26. After the trickery of the Claimants was discovered by the successors of those who signed the memoranda mentioned in paragraph 20 (supra), they abandoned the claimants and are fighting to reclaim their lands from them. It is on record however that in all the Court cases fought by claimants' ancestors, they testified that the land was that of Kasuk even though they tried to refer to an Ikpai/Kasuk Joint Council, which was never ratified nor was it ever recognized by any Ntoe of Kasuk.
27. The defendants state that they have boundary with Big Qua, Akim, Idundun Qua Clan and Qua River and not with Ikpai or any of its families. The land in dispute is within this area, and is known to all parties and is as described in defendants Plans No. EE/CR/2070/2001, which is subject of counterclaim in HC/343/2003 and Plan No. ZAP/890/LD, made by the Claimants for this suit.
28. Even though they have been asked to desist from further trespass the Defendants to counter-claim have failed to do so and have threatened to continue unless restrained by an order of Court.
29. The Defendants/Counter-claimants have suffered damages and counter-claim against the claimants and the 1st and 2nd Defendants as follows:
(i) A DECLARATION that the Defendants/Counter Claimants are entitled to the statutory Certificate of Occupancy to all that land described in Survey Plan No. EE/CR/2070/2001, made by E. Ekpenyong and dated 18th day of December, 2007, and in Survey Plan No.ZAP/890/LD made by the Claimants for this suit.
(ii) AN ORDER OF PERPETUAL INJUNCTION restraining the Claimants, the 1st and 2nd Defendants herein and their servants, agents and assigns from further meddling with and trespassing on the said lands.
(iii) N10 million damages for trespass.
(iv). AN ORDER OF COURT CANCELING ALL leases, conveyances and other transactions by the claimants over the same lands."
On the 22nd November, 2010 Chief Etim Asuquo Bassey the 3rd Claimant/Respondent deposed to a 10 paragraphs counter-affidavit, relevant paragraphs of which reads as follows:
"1. I am the 3rd claimant/respondent in this suit and the claimant of Oqua Royal Family Lands Committee. I swear to this affidavit with the consent of the other claimants/respondents as a person who is fully conversant with the facts of this case.
2. We have been served with a motion on notice dated 29th October, 2010 for the joinder of the applicants as co-defendants in this suit and we have seen the applicants' affidavit in support of the motion aforesaid and their proposed statement of defence/counter-claim.
3. In 2003 Kasak Qua Clans then represented by the late Ntoe Andrew Ansa and late Assim Ita trespass on our Oqua family land at Asari Eso village and we sued them in suit No. HC/946/2003 for the trespass and sought a declaration of title against them to the land in issue which is shown in our Survey Plan EUE/2070/2001and an order of perpetual injunction.
In that same year 2003 members of Ebed Family of Big Qua Town also trespassed into another portion of the same land at Asari Eso village shown in our survey plan EUE/2070/2001 and we sued the defendants/respondent in this present suit for that trespass and also sought against them a declaration of title to the land in issue and an order of injunction.
5. Our cause of action in suit HC/343/2009 against the applicants and our cause of action in this present suit against the defendants/respondent occurred at different times hence our separate suits against the different defendants in the two suits.
6. Suit No. HC/343/2003 was heard up to the defence stage by justice Effiong but when he retired the matter had to be heard de novo before justice Ekpe, when she was elevated to the court of Appeal it had to be heard de novo again before justice Ibok. It is therefore unfair for the applicants to allege that we are delaying that suit.
7. This present suit was before justice Itam and when no progress was made in the matter for almost six years we applied to transfer the case to another judge and the case was sent to this court then presided by justice Ita who conducted the pre-trial proceedings and then by Justice Ikpeme who commenced the hearing.
8. The present applicants are pursuing fully and effectively their interest in the land in dispute in suit No. HC/343/2003 where they have also filed a counter-claim for a declaration of title, damages for trespass and an order of injunction against us (i.e. the claimants/respondents). Their statement of defence and counter-claim in the said suit is here marked Exhibit 'A'.
9. Our Solicitor, Essien H. Andrew Esq. informs us and we verily believe him as follows:
(i) That it will be an abuse of court process for the applicants who are presently defending our claim for declaration of title, damages for trespass and order of injunction in suit No. HC/343/2003 to be granted leave to defend the same claims in respect of the same land in this present suit.
(ii) That it will also be a gross abuse of Court process for the applicants who are presently prosecuting a counter-claim for declaration of title, damages for trespass and order of injunction against us in suit No. HC/343/2003 to be granted leave to file the same counter-claims all over again against us in this present suit and in respect of the same land.
(iii) That if the parties are allowed to prosecute and defend the same claims and counter-claims against each other over the same land before different Judges of concurrent jurisdiction a bizarre situation may arise where two conflicting judgments are delivered by the same High Court on the same dispute between the same parties.
(iv) That the applicants will not be prejudiced in any way if they restrict to suit No. HC/343/2003 whatever defence or counter-claims they may wish to make in respect of the land in dispute against the present claimants or defendants since they are already parties both as defendants and as counter-claimants in that suit.
(v) That the applicants fears that they will be bound by the judgment in this present suit without being heard is totally unfounded as a person is never bound by a judgment in a suit in which he or his privy was not a party.
10. And I swear to this affidavit in good faith believing the facts herein stated to be true and accurate and in accordance with the Oaths Act."
Further affidavit was sworn to by Patrick Agbor O. Edem on 10th January, 2011, paragraphs 3-5 which reads as follows:
"3. That paragraphs 3, 4, 5, 6, 7, and 8 of the Counter-affidavit agree that the land in the Respondents' plan No. EUE/2070/2001 shows the lands in dispute in this case and in HC/343/2003.
4. That I know that the claimants/Respondents in suit No. HC/343/2003, claim in their paragraph 22(1) title to land in survey plan No. EE/2070/2001 and in Exhibit "A" to the counter-Affidavit the applicants herein claim in paragraph 35(1) ownership of all the lands in the same plan No. EE/CR/2070/2001.
5. That I believe that the Applicants who are claiming all of the land in the plan cannot standby to watch other parties fighting over title to any part of the land and are entitled to pursue a counter-claim in such instance.
Paragraph I of the counter-affidavit is not true."
The argument by Appellant's learned Counsel is that the granting of leave for the 4th-6th Respondents to be joined in the suit constituted an abuse of Court process since there would be two set of suits being litigated over the same subject matter before two judges having concurrent jurisdiction culminating into a multiplicity of actions. Learned Counsel referred to a plethora of decisions on the meaning of abuse of process which I shall later allude to if necessary. Learned Counsel urged that this appeal be allowed.
Learned Counsel to the 4th-6th Respondents submitted that their being joined in the suit was to protect their interest in the land being litigated upon by the appellants and the 1st-3rd Respondents so that, at the end of litigation they should not be held to have stood by when the appellants and the 1st-3rd Respondents were litigating over their land, in which case, they would be bound by the result or outcome of that litigation. Counsel referred to a plethora of decided authorities which if the need arises I shall subsequently refer to in this judgment. Learned Counsel urged that this appeal should be dismissed.
From the amended pleadings/counter-claim filed in this suit coupled with affidavits and counter-affidavits it is evident that initially two families were contesting ownership of this land situate in Qua Town, Calabar, namely, the Oqua Royal Family of Ikpai and the Ebed Family of Big Qua Town. But the Kasuk Qua clans, Calabar is also laying claim to the same land hence their application to be joined as the 4th -6th Respondents.
Order 1 rule 1(1)-(3) of the High Court (Civil procedure) Rules of Cross River State, 2008 reads as follows:
"1(1) These Rules shall apply to all proceedings including all part - heard causes and matters in respect of steps to be further taken in such actions.
(2) The application of these Rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.
(3) Where a matter arises in respect of which no adequate provisions are made in the Rules, the Court shall adopt such procedure as will in its view do substantial justice between the parties concerned."
From 29th day of September, 2008 when the High Court (Civil Procedure) Rules of Cross River State, 2008 came into effect, the philosophy is the attainment of substantial justice between the parties concerned. This will be achieved if the parties/Counsel and trial Judges invoke the provisions of the Rules to be directed towards the achievement of a just, efficient and speedy dispensation of justice. This will enable justice to be administered with minimum cost and delay unlike it was the case before the coming into effect of the Rules. To achieve the above purpose see order 15 rules 12, 13, 16, 17, 19, 20, 21-23 of the Rules supra.
The land is in contest between three families. (Order 13(1)(c) of the Rules). They all have interest in the same subject-matter (rule 12(1) and (2)). The learned trial Judge has to deal with the matter in controversy so far as regards the rights and interest of the parties properly before him. The 4th-6th Respondents may be allowed to come in to protect their alleged interest in the land at any stage of the proceedings (rule 16(1) and (2)). This is to enable the judge effectually and completely adjudicate upon and settle the questions involved in the proceedings (rule 16(3)). The 4th - 6th Respondents exhibited a statement of Defence/counter-claim coupled with documents/deposition of witnesses in compliance with Order 15 rule 17(2) of the Rules to satisfy the learned trial Judge they had proprietary interest in the subject-matter in dispute. What the appellants should have done was to file a Defence to the Counter-claim and an amended originating process and cause same to be served on the 4th-6th Respondents (order 18) if the intention was not to delay speedy trial.
I would in this judgment draw attention to the judgment of the Privy Council in Nana Offori Atta 11 & Anor. vs. Nana Abu Bonsra 11 & Anor. in Privy Council Judgments 1841-1973 by Olisa Chukura SAN page 656 where Lord Denning stated the law at page 659-660 to be as follows:
"The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice of deciding an issue against him in his absence. But this general rule admits of two exceptions: one is that a person who is in privity with the parties, a "privy" as he is called, is bound equally with the parties, in which case he is estopped by res judicata the other is that a person may have so acted as to preclude himself from challenging the judgment, in which case he is estopped by his conduct. Their Lordships propose in this case to consider first estoppel by conduct.
English law recognizes that the conduct of a person may be such that he is estopped from litigating the issue all over again. This conduct sometimes consists of active participation in the previous proceedings, as, for instance, when a tenant is sued for trespassing on his neighbour's land and he defends it on the strength of the landlord's title and does so by the direction and authority of the landlord. If the tenant loses the action, the landlord would not be allowed to litigate the title all over again by bringing an action in his own name. On other occasions the conduct consists of taking an actual benefit from the judgment in the previous proceedings, such as happened In re Lart, Wilkinson vs. Blades (1896) 2 Ch.788). Those instances do not however cover this case, which is not one of active participation in the previous proceedings or actual benefit from them, but of standing by and watching them fought out or at most giving evidence in support of one side or the other. In order to determine this question the West African Court of Appeal quoted from a principle stated by Lord Penzance in Wytcherley vs. Andrew (1871) 2 P.& D.927, 3281. The full passage is in these words:
"There is a practice in this court, by which any person having interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the prerogative Court held, that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to re-open the case. That principle is founded on justice and common sense, and is acted upon in courts of equity, where, if the person interested are too numerous to be all made parties to the suit, one or two of the class are allowed to represent them; and if it appears to the Court that everything has been done bona fide in the interests of the parties seeking to disturb the arrangement, it will not allow the matter to be re-opened." ((1957) WLR 830; (1958) A.C. 95/103).
If the 4th-6th Respondents did not apply to be joined in the determination of their alleged rights and interest in the land being claimed by the appellants and 1st-3rd Respondents' families and eventually, the judgment favoured any of them, in future, it could be argued that one of the parties was championing the cause of the 4th - 6th Respondents. See Ikpang vs. Edoho (1978) 2 LRN 2g at 56. In my humble opinion I do not see how the joinder of the 4th-6th Respondents to contest title to the land constitutes an abuse of Court process which the learned authors of Blacks Law Dictionary, 8th edition page 11 define as:
"The improper and tortuous use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process's scope - Also termed abuse of legal process; malicious abuse of process; malicious abuse of legal process; unlawful process; wrongful process of law."
See Okafor vs- Attorney-General of Anambra State (1991) 7 SCNJ (Pt.2) 345; Okorodudu vs. Okoromadu (1977) 3 SC 21 at 50-31; Amaefule vs. The State (1988) 2 NWLR (Pt.75) 156 at 177; Alade vs. Alemudoke (1988) 1 NWLR (Pt.69) 207 and CBN vs. Ahmed (2001) FWLR (Pt.69) 670.
Moreover, it is the appellants that instituted suit No. HC/461/2003 against the 1st-3rd Respondents on 8th day of October, 2003 without joining the 4th-6th Respondents knowing fully well they also have an interest in the same land. The same appellants filed in the same year suit No. HC/343/2003 against the 4th - 6th Respondents over the same piece of land. In my humble view it is the appellants that are guilty of filing a multiplicity of actions against the 1st-3rd and 4th-6th Respondents' families over the same piece of land that committed an abuse of court process. In either case the 4th-6th Respondents were in law and conscience entitled to file a statement of Defence/counterclaim against the appellants in each of these suits.
Furthermore, upon exchange of pleadings the appellants' learned Counsel could have applied to any of the learned trial Judges seised with any of the suits for transfer and consolidation for speedy trial. See Toriola vs. Williams (1982) 7 SC 27 at 58; Ogbogu vs. Nnonuma Ndiriba (1992) 6 SCNJ (Pt.2) 501.
In my judgment, none of the authorities cited by the learned Counsel to the appellants support their argument in this appeal namely Saraki vs. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188-189; Yau vs. Dikwa (2001) FWLR (Pt.62) 1987 at, 2016; etc. I see no merit in this appeal which is hereby dismissed with N50,000.00 costs to the 4th- 6th Respondents. I affirm the ruling of the learned trial Judge.
UZO I. NDUKWE-ANYANWU, J.C.A.:
I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Tine Tur, JCA.
I agree with him in all the issues resolved in this appeal. The appeal is dismissed with the cost as granted in the lead judgment.
ISAIAH OLUFEMI AKEJU, J.C.A.:
I had the opportunity of reading before now the judgment of my learned brother, Joseph Tine Tur, JCA just delivered. I agree with, and indeed adopt the reasoning therein and the conclusion that the appeal lacks merit. I dismiss the appeal and abide by the order as to costs.