Dr. (Mrs.) Margaret Essien V. Obong Joseph Effiong Essien & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

M. A. OWOADE J.C.A.

This is an appeal against the judgment of the Hon. Justice Michael Edem delivered on the 4th of February, 2005 in suit No. HC/176/2002. The Appellant herein was Plaintiff in the lower court and had instituted the action by a writ of summons dated and filed on 15/4/2002. By her statement of claim dated and filed on 27/5/2002, the Plaintiff claims against the Defendant for:

(1) A declaration that the building and premises situate at No. 12 M.C.C. Road, Calabar contained in Certificate of Occupancy registered as No. 35 at page 35 in volume 199 of the Lands Registry office at Calabar is the joint property of the Plaintiff and the Defendant.

(2) A declaration that the Defendant cannot sell or transfer the said building and premises to any person without the consent of the Plaintiff.

(3) An order of injunction restraining the Defendant by himself, his servants, agents, and assigns from dealing with the premises adversely against the Plaintiff’s interest.

Based on the Plaintiff’s writ of summons and statement of claim as above, pleadings were exchanged between the Plaintiff and the Defendant.

On 16/12/2002, the 2nd and 3rd Defendants, having joined the 1st Defendant in the case, filed a joint statement of Defence of the 2nd and 3rd Defendants.

On 18/12/2002, the Plaintiff/Appellant filed Amended writ of summons and Amended statement of claim which she claimed against the Defendants jointly and severally for:

1. A declaration that the building and premises situate at No. 12 M.C.C. Road, Calabar contained in a Certificate of Occupancy registered as No. 35 at page 35 in volume 199 of the Lands Registry office at Calabar is the Joint property of the Plaintiff and the 1st Defendant.
2. A declaration that the 1st Defendant cannot sell or transfer the said building and premises to the 2nd and 3rd Defendants without the consent of the Plaintiff and that any purposes sale thereof by the 1st Defendant without the consent of the Plaintiff is null, and void and of no effect.
3. A declaration that any such sale or transfer without the statutory consent of the Governor renders the sale or transfer a nullity.
4. An order of injunction restraining the 1st Defendant by himself, his servants, agents and assigns from dealing with the premises adversely against the Plaintiff’s interest.

On 6/3/2003, the 4th Defendant who was joined by order of court on 18/12/2002 filed a statement of defence. The relevant pleadings before Michael Edem J. at the lower court were Plaintiff’s Amended statement of claim of 18/12/2002. Joint statement of defence of the 2nd and 3rd Defendants containing their counter claims as follows:

(i) An order of declaration that the assignment of the property at No. 12 M.C.C. Road, Calabar by the 1st Defendant to the 2nd Defendant is lawful and valid in law.

(ii) An order of declaration that the 2nd Defendant is a purchaser for value without notice of encumbrances of the property situate at No. 12 M.C.C. Road, Calabar.

(iii) An order of mandatory injunction compelling the Plaintiff to surrender possession of the property at No. 12 M.C.C. Road, Calabar to the Defendant forthwith.

The third relevant pleading before the lower court is the statement of defence of the 4th Defendant dated 6/3/2003 and filed on 7/3/2003.

And finally, the Reply to 2nd and 3rd Defendants statement of defence and defence to counter claim by the Plaintiff dated and filed on 16/4/2003.