Legalpedia Citation: (2023-12) Legalpedia 58981 (CA)

In the Court of Appeal

Holden At Calabar

Wed Dec 6, 2023

Suit Number: CA/C/43/2022

CORAM

Hamma Akawu Barka Justice, Court of Appeal

Balkisu Bello Aliyu Justice, Court of Appeal

Peter Chudi Obiora Justice, Court of Appeal

PARTIES

1. IKOI IKPI ITAM

APPELLANTS

1. CHIEF MAGISTRATE HELEN OKOI ITAM
2. MRS. CLARA KEDEI EDU-BASSEY
3. DR. UBI OKOI ITAM 4. MRS. ENI IJEOMA NKEM

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE, PROBATE AND ADMINISTRATION, PROPERTY AND CONVEYANCING

SUMMARY OF FACTS

The controversy centers on the contest to the Will of the Late Hon. Justice (Chief) Okoi Ikpi Itam (1954 to 2017), formerly the Chief Judge of Cross River State of Nigeria. Counsel for the Respondents states that the deceased jurist in his lifetime made a Will dated 21st day of January, 2011. The Probate Registry confirmed by series of letters the existence of the Will.

Upon the demise of the said deceased jurist, there was a search of the Will, which was read and propounded upon without any contest. There were, in addition, letters of Administration for those properties of the deceased not covered in the Will viz: Plot 66-68, Block 6, Airport Bypass Road, Calabar, and the property located at Nneibong, Enonti Farm Road, Ugep Urban, Yakurr Local Government Area of Cross River State.

​The above stated properties were purchased when the deceased Hon. Chief Judge, while serving as a Judge of the High Court of Cross River State, went on secondment to the Republic of Gambia, and through his foreign service allowances purchased the two landed properties described in the Will above. They were purchases made through the Appellant, Mr. Ikoi Ikpi Itam, who signed the title Deeds of the two properties on behalf of the Late Hon. Justice (Chief) Okoi Ikpi Itam, in his given name for the first property, and in his traditional name for the second property as the deceased was then away on foreign assignment in the Republic of Gambia. The Appellant herein, is the younger brother of the Late Hon. Justice (Chief) Okoi Ikpi Itam. That Appellant Mr. Ikoi Ikpi Itam asked for funds and received monies for the fencing and building construction in the said plots for and on behalf of the deceased and for the benefit of the deceased and Appellant, Mr. Ikoi Ikpi Itam was appointed a Trustee and Caretaker of the properties of the deceased.

That Appellant chose to betray that trust and relationship by forging the land documents and converting the properties of the deceased to himself. He even went ahead to sell one of the properties and unsatisfied with the provisions of the Last Will and Testament of the deceased, approached the lower Court via a Writ of Summons with a Statement of claim dated the 4th day of February, 2020, seeking declarations that the Will and Testament of the deceased wasn’t legit.

​At the close of evidence and addresses, the Court found against the claimant.

Dissatisfied with the outcome of his claim, Appellant made the instant appeal.

The Respondent filed a preliminary objection in opposition to the appeal.

HELD

Appeal Dismissed

ISSUES

1. Whether the appeal is competent as the appeal has multiple notices of appeal and the record of appeal is headed in the lower Court?
2. Whether the trial Court was vested with the jurisdiction to entertain the case which bordered on landed properties located in Abuja?
3. Whether in the face of the evidence adduced by the appellant before the Court below, the judgment of the trial Judge was perverse and as such bound to be set aside by this Court?

RATIONES DECIDENDI

PRELIMINARY OBJECTION – CONDUCT OF COURTS TO PRELIMINARY OBJECTIONS

Now by a long and undisturbed line of authorities, where a preliminary objection is raised challenging the competence of the notice of appeal, being an originating process, that preliminary objection must be accorded due respect by way of determining it one way or the other. This is because where the preliminary objection is upheld with regards to the competence of the appeal, that obviates the need for the Court to consider the arguments in the main appeal. This is so because a preliminary objection being a pre-emptive strike the resolution of same positively obviates the need for the dissipation of judicial energy and time in the determination of the appeal on the merit. See, Umezinne vs. FRN (2019) 3NWLR (pt. 1660) 532 @ 546. – Per H. A. Barka, JCA

NOTICE OF APPEL – WHEN THE APPELLANT FILES TWO OR MORE NOTICES OF APPEAL

It is trite law that an Appellant is at liberty to file two or more notices of appeal, and at the hearing elect the notice of appeal he intends to argue the appeal or seek for the consolidation of the notices of appeal. See, Ashiek vs. Bornu State Govt.(2012) 9NWLR (pt. 1321)1 (CA), Ogboru vs. Uduaghan (2012) 11NWLR (pt. 1311) 357 (SC), Yaki vs. Bagudu (2016) EJSC (vol. 29) 2 @ 41 – 42. Putting the issue beyond contention, Ayoola JSC in Benue State vs. Ulegede (2001) 17NWLR (pt. 68) 88, held that the right of appeal is not lost by the filing of more than one notice of appeal, as what is important is that the Appellant confined himself to one and so long as the Respondent is not confused as to what to respond to. This established legal position appears clearly to be within the knowledge of the learned counsel for the 1st – 4th Respondents, having alluded to the case of PDP & Ors vs. Badaire & Ors (2019) LPELR – 47063 (CA) per Abiru JCA.  – Per H. A. Barka, JCA

APPEALS – HOW APPEALS ARE CONDUCTED

In any case, appeals are heard on the scheduled hearing date and not before then. It is at that stage that counsel intimates the Court of its desire withdrawing, or consolidating notices of appeal on which he seeks to rely upon. Mr. Ikpeme is therefore right in stating that the learned counsel for the 1st – 4th Respondents jumped the gun at that stage, and the consequence of which is that this leg of the preliminary objection is rendered baseless and unfounded.  – Per H. A. Barka, JCA

JURISDICTION – THE IMPORTANCE OF JURISDICTION IN ADJUDICATION

…the fact that jurisdiction is fundamental to the hearing of a case is elementary. Also elementary is the fact that any Court that ventures into adjudicating a matter on which it has no jurisdiction, is an exercise in futility, null and void. The authorities on the legal point are too numerous, suffice to cite just a few. AG of the Federation & Ors vs. AG Lagos State (supra), Tukur vs. The Govt of Gongola State (1989) 4 NWLR (pt. 117) 517, Effiom vs. CRSIEC (2010) 14 NWLR (pt. 1213) 106, Gaba vs. Tsoida (2020) 5 NWLR (pt. 1716) 1 and Audu vs. APC (2019) 17 NWLR (pt. 1702) 379, Solumade vs. Kuti (2022) 1 NWLR (pt. 1810) 31 @ 64.

Jurisdiction is one area that can be raised by the Court suo motu and determined by the Court without calling on the parties to address thereon. See, Gaba vs. Tsoida (supra), Sanni vs. The People of Lagos State (2022) 4 NWLR (pt. 1820) 399 @ 413, NNPC vs. Roven Shipping Ltd (2019) 9 NWLR (pt. 1676) 67. – Per H. A. Barka, JCA

 

STATEMENT OF CLAIM – WHETHER STATEMENT OF CLAIM OF THE PLAINTIFF IS USED TO DETERMINE JURISDICTION

I agree with the learned counsel on both sides that it is from the statement of claim of the plaintiff that determines the jurisdiction of the trial Court, even though at times, the Court is empowered to look at the documents in its file, or even to hear some evidence for the purpose of determining the issue of jurisdiction. See, Skye Bank Plc vs. Chidebere (2017) 7 NWLR (pt. 1564 (CA), Adeyemi vs. Opeyori (1976) 9 – 10 SC 31, Onuorah vs. Okeke (2005) 10 NWLR (pt. 932) 40, AG Kwara State vs. Olawale (1993) 1 NWLR (pt. 272) 645, Tukur vs. Govt of Gongola State (supra). As held in Zakirai vs. Muhammad (2017) 17 NWLR (pt. 1594) 181 @ 233 – 234, it is the plaintiff’s claims that determines the jurisdiction, that is to say, that it is the claim before the Court that has to be looked at in ascertaining whether it has the jurisdiction assigned to it by law. – Per H. A. Barka, JCA

PERVERSE JUDGMENT – MEANING OF PERVERSE JUDGMENT

A perverse judgment is that judgment that is contrary to the evidence adduced. – Per H. A. Barka, JCA

 

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Code of Conduct Bureau and Tribunal Act
3. Land Use Act 1978, Laws of the Federation of Nigeria, 2004
4. Cross River State (Civil Procedure) Rules 2008

CLICK HERE TO READ FULL JUDGEMENT