Etim Ekpenyong & Ors V. Inyang Efiong Nyong & Ors (1975)

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DAN IBEKWE, J.S.C.

The appellants in this case are challenging the propriety of the order contained in the ruling of Kooffreh, J., which was delivered in the High Court, Calabar, on the 26th day of June, 1972. The ruling dealt with an interlocutory application which was made by the respondents in this case in the court below for an interim injunction.

We think that it is relevant at this stage to point out that although the pleadings had been ordered and filed, nevertheless the case was not ripe for hearing in the court below at the time when the application for an interlocutory injunction was filed. It is, therefore, desirable that the relevant portions of the Statement of Claim and of the Statement of Defence filed by the parties should be set out.

In paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 21, 23 and 24 of the Statement of Claim, the respondents who were the plaintiffs in the court below averred as follows:-

“9.    All the defendants are still members of the Idua Assang Land Committee.

10.   The Idua Assang People of which the plaintiffs form  part own a large portion of land covering a large area of the Oron Urban including a stretch of beaches occupied by licence Buying Agents, a Village Council called the Idua Assang Village Council handles the local administration of the Village. Apart from this there are the Idua Assang Management Committee and the Idua Assang Land Committee. These two committees are subordinate and responsible to the Village Council.

11.   The Idua Assang Land Committee is the body responsible for the portioning and leasing out of the whole Idua Assang Community Land in Idua Assang Oron, Oron Division, and collects rents from all such leases. (The Idua Asang Land Committee is accountable to the Idua Assang Management committee).

12.   For every plot allocated to an Idua son or daughter , the defendants collect from each of such persons an initial fee of 8 Pounds,10/- as rent.

13.   For every lease granted to persons who are not members of Idua Assang Community the defendants collect initial fees ranging from 20 Pounds – 100 Pounds from each tenant and in addition the defendants collect rents of about 10 years in advance from them.

14.   During the period 1968-1971, the defendants have leased out about 268 portions of land and have collected rents in respect thereof rents totaling about 8,942pounds.19d.

15.    Between 1968-1971, the plaintiffs on behalf of themselves requested the defendants jointly and severally to render accounts of all monies collected in respect of the Idua Assang Community Land leased out by them. But since then the defendants have refused or neglected to render accounts asked for by the plaintiffs.

16.   Within the same period 1969-1971, the plaintiffs requested the defendants to produce records of all leases granted to tenants, all stamps and/or copies of receipts in respect of all monies received by the defendants from tenants to whom leases have been granted. But the defendants repeatedly refused and or neglected to produce them.

21.   By an Audit Report prepared by the Idua Assang Village Council Auditor covering the period January 1959 to December 1961, which was adopted by the Idua Assang Village Council to which the Land Committee is responsible, certain recommendations affecting the leasing of Idua Assang Community Land and the Handling of Rents collected from the Community Lands were made. But the defendant have ever since refused to adopt these recommendations, (the said Audit Report shall at the trial be founded upon) Idua Assang Land Community.

23.   The plaintiffs aver that the defendants have failed in their duty in that they have never rendered proper and/or satisfactory account to the whole Community of Idua Asang of which the plaintiffs form part.

24.   The plaintiffs further aver that they have been left in ignorance as to the exact amount due to the entire Idua Assang Community including themselves and as to the facts from which such amount can be ascertained.”

In a lengthy and cumbersome Statement of Defence, the appellants who were the defendants in the court below denied most of the allegations in the relevant portions of the Statement of Claim set out above. The main defence to the claim seems to be that which was set out in paragraph 10 of the Statement of Defence as follows:-

“10. At the trial it will be maintained that the defendants are not an accounting party to the plaintiffs (but are answerable only to the IDUA -ASSANG VILLAGE COUNCIL (vide paras. 7(c) and 8 above) as admitted by the plaintiffs themselves in para. 11 of their Statement of Claim and that therefore the action is misconceived and unmaintainable.”
On the 15th day of March, 1972, the plaintiffs/respondents brought a motion in the court below in which they prayed the court to decree as follows:-
“(1)   an order for an interim injunction commanding the defendants by themselves, their servants or agents to
(a)    refrain from alienating by sale, lease, or otherwise, portions of the land affected by the claims in this suit.
(b)    pay into this honourable court, pendente lite, all money collected or received by the 1st defendant or any of the other defendants from Mr. O. J. Okon, a contracting engineer at Oron, in respect of the recent lease by him or them of the Idua Assang Communal beach known as ESUK EKPO ETIM EBITO, which is part of the land affected by this suit.
(c)    to make true and full disclosure of, and pay into court, all other moneys or considerations received by any or all for the defendants, pendente lite, from a Mr. Ezekiel Thompson, a Mr. Efiong  Esang, and  a Mr. Asuquo Tishion, or from other persons, for leases or sales of other modes of alienation of the land affected by this suit.”

In paragraphs 6, 7, 8 and 9 of the affidavit in support of their application, the applicants deposed as follows:-

“6.   That after summons for the suit had been properly served upon the defendants, and they appeared in court when the suit was first mentioned in October, 1971, the 1st defendant and/or the other defendants purported to grant a lease of that portion of the said Idua Assang communal land called Esuk Okpo Etim Ebito to one Mr. O.J. Okon, a contracting engineer.

7.    That the said Mr. O. J. Okon is now in purported occupation and/or possession of the said Esuk Okpo Etim Ebito.

8.    That I verily believe that the 1st defendant and/or other defendants have received money and/or other considerations from the said Mr. O. J. Okon for the unlawful grant.

9.    That the 1st defendant and/or other defendants have also unlawfully and clandestinely alienated other portions of the said Idua Assang communal land, including the following:
(a)  Land situate near the evening market, Oron, to one Ezekiel Thompson.
(b)  Land at Ebito Street, Oron, to one Efiong Esang.
(c)  Land situate near Unity Church, off  Ebito Street, aforesaid, to one Asuquo Tishion.”
After hearing argument on the motion on the 19th day of May, 1972, Kooffreh, J, then adjourned the matter for a ruling. On the 26th June, 1972 the learned trial Judge delivered his ruling in which he made the following order:-

“Until the issue of the account is decided I am of the opinion that the management of the funds of the Idua Assang Town should be removed from the hands of the defendants.
I therefore order that:

(1)    Until the present case before this court is decided both sides to this dispute and all others in Idua Assang Town having power to deal with the properties of the Town should cease forthwith to exercise such powers or have any thing to do with the properties and fund of the Village.

(2)    All committees of the Idua Assang Village including the Village Council be suspended till the determination of this case. In its place a caretaker committee of five members including one woman should be appointed from members of the Idua Assang Village who are not parties on record in this action in the presence of the Senior Divisional Officer Oron to collect rents and the income of the Idua Assang Town and pay same into any bank approved by the Senior District Officer under the name of Idua Assang Village Fund or any other suitable name.
That fund is to be operated entirely by the Senior Divisional Officer Oron and disbursed after due recommendation of the Caretaker Community and approval of the Senior Divisional Officer himself.

(3)    The composition of the Caretaker Committee must reflect the two sides to this action and some neutral members of the village. Where necessary for a particular decision the Senior Divisional Officer in his absolute discretion may increase the members of the Caretaker Committee to not more than seven.”

The present appeal has been brought from this ruling of Kooffreh, J., by which he restrained the defendants and all others, including those who were not parties before the court, from having any further dealings with the properties and funds in dispute. In this ruling he also suspended the Village Council, and purported to set up a Caretaker Committee of five members to collect rents and other income accruing from the properties in question and to pay same into any bank approved by the Senior District Officer. He further directed that the fund should be entirely operated by the Senior Divisional Officer, Oron, and disbursed after due recommendation of the Caretaker Committee. The appellants have appealed on five grounds which are too verbose and unwieldy to be reproduced in this judgment. Suffice it to say that, in a nutshell, the main complaint is that the said order made by Kooffreh, J., in his ruling of 26th June, 1972 is unenforceable; and that, at any rate, the learned trial Judge acted ultra vires When, therefore, this appeal came up for hearing on the 4th of February, 1975, we were not surprised to find that Mr. Esin, learned counsel for the respondents had filed a notice of preliminary objection to the appellants’ original grounds of appeal on the following grounds:-

“1.   That it is not specified, and it is impossible to tell whether the 5 grounds are taken on law or fact.

2.    That each of the 5 grounds filed is so long, sententious, unwieldy, and wanting in precision, that it is impossible for the respondents to make out on what point it is taken.”

We wish to say at this stage that we ourselves, were not altogether happy with the way the grounds in question were framed; but, we thought that the appeal before us was of such a nature that it should fall within the exceptional circumstances where the court is sometimes required to ignore mere technicalities so as to be able to do substantial justice. Mr.  Esin, however, did not press his objection home, in view of the fact that Chief Anwan, learned counsel for the appellants, had himself offered to argue all the grounds together. We think that we should make it abundantly clear that this court frowns at grounds of appeal which are not properly framed as provided in our rules of court.

Be that as it may, we cannot but take the view that the order made by Kooffreh, J., in his ruling of 26th June, 1972, is manifestly wrong; and it therefore, cannot stand. In the first place, we think that it is not within the competence of Kooffreh, J., to suspend the Village Council, and to set up a Caretaker Committee in its place, as he had purported to do his ruling under review, nor do we think that it was open to him to appoint the Senior District Officer as sole administrator of the fund which, according to his directive, the Caretaker Committee should deposit in the bank. These, in our view, are purely administrative functions which fall exclusively within the competence of the executive arm of government. It is settled law that a court of justice will not issue an order which is unenforceable. See Ukejianya v. Uchendu, 13 WACA 45. It seems to us though, that there is yet need for us to restore this principle of law, which is also a rule of prudence. We take the view that, as far as possible the courts should desist from making orders which would be ineffective, impotent, or abortive. Like nature, the courts should do nothing in vain.

Secondly, we think that, as the reliefs granted by the learned trial Judge were not those sought by the applicants, he went beyond his jurisdiction when he purported to grant such reliefs. It is trite law that the court is without the power to award to a claimant that which he did not claim. This principle of law has, time and again, been stated and re-stated by this court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law, but good sense.
A court of law may award less, and not more than what the parties have claimed. A fortiori, the court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claim.

In view of the foregoing grave errors into which the learned trial Judge had fallen in his ruling under review, we, without hesitation, have come to the conclusion that the said ruling of Kooffreh, J., delivered on 26th June, 1972, together with the order purported to have been made therein should not be allowed to stand, and it is hereby set aside. In the circumstances, the appeal succeeds and it is allowed.

But in order to serve the ends of justice we make the following order: The parties in this case are restrained from dealing with the property and the fund in dispute until the determination of the case now pending in the court below.

We also order that this case should be heard by another Judge. And this shall be the judgment of the court. We make no order as to costs.

Other Citation: (1975) LCN/2104(SC)