Ene Adim Okon V. Roseline Ekpo Ita (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NWALI SYLVESTER NGWUTA, J.C.A.(Delivering the Leading Judgment)

This appeal is against the judgment of Itam J of the High Court of Justice, Cross River State Calabar Judicial Division. The judgment was delivered on 26th January 2009 in suit No HC/154/2005.

Endorsed on the writ of summons issued on 11th April 2005 and reproduced in paragraph 37 of the statement of claim is the Plaintiff’s claim for:

(a) A declaration that the Plaintiff is the beneficial owner of the property situate and lying at No 58/71 Palm Street Calabar.

(b) Perpetual injunction restraining the Defendant, her heirs, assign from trespassing and /or laying claim to the property situate and lying at No 58/71 Palm Street, Calabar.

(c) General damages of N1,000.000.00 (One Million Naira) against the defendant.

In her statement of defence the defendant denied the Plaintiff’s claim in its entirety and counter-claimed thus:

(i) A declaration that the counter-claimant is the bonafide owner of the property know as No 58/71 Palm Street Calabar.

(ii) An order directing the defendant to this counter-claim, her agent, assigns, privies to vacate forthwith from the counter-claimant’s property at No 58/71 palm Street Calabar.

(iii) An order directing the defendants to this counter-claim to return to the counter claimant the original copy of the survey plan of the property at No 58/71 Palm Street Calabar especially identified as survey plan of property at No 58/71 Palm Street Calabar especially identified as survey plan No ISH922 surveyed by E. Ekpenyond FNIS.

(iv) N2,000.000.000 (Two Million Naira) general damages against the defendant to this counter-claim.”

At the trial three witnesses testified for each side. The defendant closed its case on 30/7/2007 and the matter was thereafter adjourned to 6/8/07 for addresses of Counsel.

Learned Counsel for the parties filed and exchanged written addresses but for reasons not apparent on the face of the record the addresses were not adopted until 8/7/08, about one year after the close of the Defendant case. From 8/7/08 the matter was adjourned to 29/7/08 for judgment. The judgment was not delivered as scheduled and on 17/11/08 at the instance of Learned Counsel for the Plaintiff, Learned Counsel for the parties “readopted” their written addresses. The trial Court then adjourned to 11/12/08 for judgment. The judgment was finally delivered on 26th January 2009.

After a review of the evidence on both sides, a review that included a blistering denounciation directed at the Plaintiff (Dw1) and one of her witnesses (Pw2) the trial Court concluded: