Etubom Ekpo Effiom & Ors V. Chief Effiom Eyo Okon (2008)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A.
The Respondent as plaintiff in the lower Court, a certificated Village Head of Ekpene Tete Village in Akpabuyo L.G.A. of Cross River State, commenced an action for himself and on behalf of the people of his village against the defendants now appellants, claiming as follows:-
“(a) A declaration that the plaintiff is the certificated village head of Ekpene Tete Village in Akpabuyo L.G.A.
(b) A declaration that the plaintiff as village head has a statutory duty to manage the economic resources of Ekpene Tete village as a trustee for the benefit of the entire village.
(c) An order of perpetual injunction restraining the defendants, their agents, thugs, servants, representatives from interfering with the plaintiff functions as the village head of Ekpene Tete in Akpabuyo L.G.A.
(d) N20, 000,000 being general damages against the defendants jointly and severally for interfering with the right of the plaintiff as village head.”
Upon service on them of the writ of summons the appellants as defendants entered a conditional appearance and followed this up with a notice of preliminary objection on two grounds, namely:
(1) Want of locus standi; and
(2) Commencement of the suit in a wrong judicial division.
The learned trial judge ruled that the respondent as the certificated village head of Ekpene Tete, has locus standi to sue with the authority of the Village Council.
Aggrieved by the said ruling the defendants, now appellants, appealed on two grounds:
“(1) The learned trial Court erred in law when it held that the plaintiff has the locus to maintain this suit with the authority of the Village Council over the management and control of a palm plantation in which title is held in trust by 1st Defendant for the families of late Obong Tete’s children.
(2) The plaintiff was duly served with Defendant’s motion papers but failed to react to all the averments contained in the Defendants affidavit in support of the preliminary objection.”
In the brief of argument deemed filed on 13.3.08 learned Counsel for the appellant formulated the following issues for the Court to resolve:
“1. Whether the learned trial judge did not err in law by ruling that the Respondent being a certificated village head has the locus standi to sue the Appellants over the management and control of the palm plantation being held in trust by 1st appellant.
- Whether failure of the learned trial Judge to rule on uncontroverted facts by the Respondent in favour of the Appellants did not amount to a miscarriage of justice.”
In his own brief of argument learned Counsel for the Respondent presented the following lone issue for determination:
“Whether the plaintiff has locus standi in instituting this action in a representative capacity on behalf of the people of Ekpene Tete Village Akpabuyo Local Government Area.”
It is necessary at this state to determine the competence vel non of the grounds of appeal and issues arising therefrom. In the ruling appealed from the trial High Court held that the respondent has the locus to sue with the authority of the Village Council. The Court in its ruling did not relate the Respondent’s locus standi to the management and control of a palm plantation. Ground one in the appellant’s notice of appeal limited the scope of the Respondent’s case and the ruling of the trial Court. The ground should read thus “The learned trial Court erred in law when it held that the Plaintiff being a recognized and certificated Village Head of Ekpene Tete has the locus standi to sue with the authority of the Village Council.”
Ground 2 complained that ”The plaintiff was duly served with Defendant’s motion papers but failed to react to all the averments contained in the defendant’s affidavit in support of the preliminary objection.” Above is a complaint against the action or mission of the respondent. It has nothing to do with the ruling of the trial Court. A ground of appeal properly so called, complains of any decision, resolution, inference or step taken by the Court or mission to act by the Court, which the appellant contends is wrong. See ONIFADE v. OLAYINOLA (1990) 17 NWLR (Pt. 161) 130, ELLA v. AGBO (1999) 8 NWLR (Pt. 613) 139, AFRIBANK (NIG.) PLC v. OSISANYA (2000) 1 NWLR (Pt. 314) 606. A ground of appeal involves an issue of fact or of law or of both law and fact in the judgment such that if upheld will sustain the appeal. See IKWUNNE v. STATE (2005) 4 LRCNCC. Ground 2 in the appellant’s notice is not a ground of appeal and no issue in the appeal can arise from it. Ground two and issue two purportedly framed therefrom are hereby struck out for being incompetent.
The lone issue presented by the Respondent is in consonance with the appellant’s issue one as reframed and the ruling of the trial Court. I shall determine the appeal on the said issue.
Arguing issue one (now the only issue) in his brief, learned Counsel for the appellant said that the palm plantation at Ekpene Tete village is the joint property of late Obong Tete families held in trust by successive family heads. He referred to pages 10 -11 of the records and Section 15(2) a-p of the TRADITIONAL RULERS LAW OF CROSS RIVER STATE NO.4 CAP T4 for the duties of the Respondent as the Village head. He said the declaration sought by the respondent is outside the duties the law prescribes for the village head. He added that the Respondent failed to disclose his legal right sought to be protected and relied on ADESANYA v. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (2001) FWLR 46 at 864, A.G, FEDERATION v. A.G. ABIA STATE (2001) FWLR (Pt. 64) 203 at 231 and AG. FEDERATION v. A.G. EKITI STATE (2001) WRN 50 p.1 at 15. He contended that action of the respondent does not disclose his standing to sue. Learned Counsel impugned the assertion of the trial Court that the issues shall “be more clearly elucidated when the matter comes to trial” and said the Court glossed over the issue in its decision that the respondent has locus standi to sue. Counsel urged the Court to allow the appeal.
Arguing the issue in his brief learned Counsel for the Respondent referred to OLANIYAN v. ADENIJI (2007) 27 WRN 37 and AJAGUNGBADE III v. LAWIYI (1993) 3 NWLR (Pt. 633) 92 at page 112 and said that locus standi “means that the plaintiff has shown sufficient interest in the subject matter and is entitled to be heard”. Relying on ADEFULU v. OYESILE (1989) 5 NWLR (Pt. 122) 322 he asserted that it is the statement of claim alone that determines the question of locus standi. He said the question of locus standi relates not only to the named plaintiff but to the entire people of Ekpene Tete village who are represented in the suit. He referred to the totality of the facts averred in the statement of claim and said the Respondent and those he represents have locus standi to commence and maintain the action. He urged the Court to dismiss the appeal and affirm the decision of the Court below.
The appellants abandoned their second ground of objection to the effect that the suit was commenced in the wrong judicial division. The only averment relating to the matter is paragraph 13 in the supporting affidavit in which the appellants averred that the defendants reside in Calabar out of jurisdiction. The above without more, is not a challenge to the powers of the High Court, Akpabuyo to hear and determine the suit. The learned trial Judge was right to have ignored the 2nd ground of objection.
Appellants would concede that the suit discloses a cause of action in the nature of bundle or aggregate of facts, which the law will recognize as giving the plaintiff a right to relief at law or equity. See BELLO v. A-G, OYO STATE (1986) 1 NWLR (Pt. 45) 825, S.G.B. v. BURAIMOH & ANOR (1991) 1 NWLR (Pt. 168) 428, OGBIMI OLOLO (1993) 7 NWLR (Pt. 304) 128.
The appellant’s case is that the plaintiff on record has no special legal rights or sufficient or special interest to be heard in pursuant of the claim. See OLORIDE & 4 ORS. v. OYEBI & 4 ORS (1984) 1 SCNLR 390, ANIMASHAUN v. OSUMA (1972) 4 SC 200. The plaintiff now Respondent brought the action for himself and on behalf of the people of Ekpene Tete Village, Akpabuyo L.G.A., and the Appellants do not challenge this capacity on the facts before the trial Court. The appellant’s case is in effect that the Respondent and the people of Ekpene Tete Village have no legal right to sue in respect of economic resources of the village. I do not share this view. Either the Respondent as the Village Head can sue to protect economic resources of the village as a trustee or the entire village can sue by their representative as in this case. Appellants singled out the palm plantation. In paragraph 12 of the supporting affidavit the appellants swore that “plaintiff has no statutory function or duty to manage the economic resources of Ekpene Tete Village as a trustee for the benefit of the village. If the village head is without authority to manage the economic resources of his village for the benefit of the people of the village the appellants failed to show who should perform such function.
Learned Counsel for the appellants referred the trial Court to Traditional Rulers Law for the functions of the Village head which functions he said include the duty to oversee the peoples land. The village head cannot oversee the village land in isolation of the economic resources on the land. Land is generally defined to include not only the surface of the earth and subsoil, but also all the appurtenances permanently attached to it such as buildings, trees, streams, etc. See Section 3 of the Interpretation Act. The Roman law doctrine of quic quid plantatur solo, solo cedit is a principle of Nigerian property Law. See OKEKE v. TOFI (No.2) (1979) 3 LRN 337, GAJI v. PAYE (2003) 12 MJSCA 82.
I resolve the issue in favour of the Respondent. Having resolved the issue in favour of the Respondent, I dismiss the appeal and affirm the ruling of the trial Court.
Appellants are hereby ordered to pay costs assessed at N10, 000.00 to the Respondents.
Other Citations: (2008)LCN/2953(CA)
