Paulina Sebastian Akpan V. Mrs. Anthonia Alphonsus Etim Udoh (2007)

LawGlobal-Hub Lead Judgment Report

OWOADE J.C.A.

This is an appeal against the decision of the Honourable Justice Enefiok Udoh of the High Court Akwa Ibom State, Eket Judicial Division dated 25th April, 2002, dismissing the appellant’s suit.

The appellant and her deceased mother took out a writ of summons as plaintiffs against one Alphonsus Etim Udo as defendant before the lower court on 26th April, 1995. From the printed record. the writ of summons was followed by an amended statement of claim dated 8th December, 1995 wherein the plaintiff’s claim from the defendant in addition to special and general damages, an order cancelling, nullifying and/or setting aside the certificate of occupancy

No. UY/1561/94 dated the 23rd day of July, 1994 and registered as No. 93 of page 93 in volume 100 of the register of deeds kept in the Lands Registry in the office of Uyo, granted to the defendant in respect of property in dispute and

(iv) An order of perpetual injunction to restrain the defendant, his agents, workmen, servants or privies from further trespass onto the plaintiff’s property being lying and situate at No. 94 (formerly No 92) Ikot Ekpene Road, Uyo or doing thereon any other manner of work howsoever.

The defendant filed a statement of defence dated 23rd February, 1996 and counter-claimed as follows:

(i) A declaration that the contract of sale entered into between the plaintiff’s family represented by John Sebastian Akpan and Augustine Sebastian Akpan and the defendant on the 30th of September, 1991 touching and concerning the property identified and known as No. 92 (94) Ikot Ekpene Road, Uyo is valid, binding and conclusive.

(ii) An order of special performance on the plaintiff to rectify any error or anomaly in the agreement dated the 30th of September, 1991 touching and concerning the property known and identified as No. 92(94) Ikot Ekpene Road. Uyo.

(iii) An order of perpetual injunction restraining the plaintiffs’ their agents, servants, privies and whatsoever claming through them from entering or trespassing in whatever manner or form into the defendant’s property known and identified as No. 92(94) Ikot Ekpene Road, Uyo.

(iv) Ten million naira damages for not according to the defendant a quiet and peaceful enjoyment of his property identified and situate at No. 92 (94) Ikot Ekpene Road, Uyo.

Thereafter, on the 18th day of March, 1996, the plaintiffs filed a reply to the statement of defence and defence to counter-claim.

The case of the plaintiff is that the property in dispute belongs to her father one Sebastian Akpan who died intestate on 25th February, 1980 and that after the death of her father, the land in dispute devolves on the plaintiff’s family, letting out the stores to tenants and that the original defendant Mr. Alphonsus Etim Udoh was one of such tenants on the land in dispute. That eventually the said original defendant trespassed on the larger property and when investigated, he claimed that he has purchased the property from John Akpan one of the two male children of the deceased and he (the original defendant) showed the plaintiff deed of conveyance dated 20th March, 1977 and certificate of occupancy dated 23rd July, 1994 in his favour on the said property. It was on these facts that the plaintiff claimed that upon the death of her father intestate, she and her brother John, jointly applied and obtained letters of administration to manage their father’s estate, that in 1977, John was 13 years old, incapable of conveying the property and also that their father was still alive in 1977 and no devolution of his property took place until his death in 1980. At the trial, the plaintiff gave evidence and expressed surprise at the defendant’s claim. The defendant on the other hand, claimed he paid a total sum of about N500,000.00 on the instruction of the plaintiff and more particularly to the only two male children of the plaintiff’s family that is John and Augustine Akpan.

He tendered the deed of conveyance dated 20th March, 1977 executed between John Akpan and himself, the certificate of occupancy on the land and the plaintiff’s father survey plan on the land submitted to him. And to show that his over-lordship is now recognized by the existing tenants on the land, he called one of the tenants to him as DW2.

The reasoning of the learned trial Judge for dismissing the plaintiff’s/appellant’s case could be seen more particularly from pages 43-45 of the printed record. Starting from page 43, the learned trial Judge held as follows: