Equere Mbat Ukpe V. The Registered Trustees Of The Apostolic Church Of Nigeria & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

The Registered Trustees of the Apostolic Church (1st Respondent) by her Attorney Elder Obo Archibong sued the appellant and the 2nd Respondent before the High Court of Justice, Calabar, Cross River State claiming they were trespassers on their land situate at No.38 Odukpani Road, Diamond Hill, Calabar, Cross River State. Having heard evidence Hon. Justice E.E. Ita entered judgment in favour of the Registered Trustees of the Apostolic Church on 6th July, 2009 in suit No. HC/381/2008.

The facts upon which No.38 Odukpani Road was contested in the trial court are as follows: The 1st Respondent’s pleading and evidence in the trial Court was that late Madam Mary Eyo Ekpo derived title to the bungalow by lease from the Board of Trustees of the Presbyterian Church of Nigeria Ishie. Before her death she sold the property to the Registered Trustees of the Apostolic church as pleaded in paragraphs 5-8 of the statement of claim to wit:

“5. The land in question comprising double plot originally belonged to the Board of Trustees of the Presbyterian Church of Nigeria Ishie Parish, who leased it to Late Madam Mary Eyo Ekpo as evidence in their demand notice for rent payment and subsequent letter of Late Madam Mary Eyo 18th September, 1990 to Barrister Eyo Ekanem Solicitors to the Presbyterian Church of Nigeria Ishie Parish.

6. The claimant avers that on the 4th October, 1989 they wrote to late Madam Mary Eyo Ekpo to purchase/lease her land and permanent building covered by a Certificate of Occupancy No.CA/2288/84 dated 30-03-1984.
7. After a series of negotiation half of the plot excluding the other half with the permanent building (Bungalow) but including temporary structures bars of galvanized iron sheet was sold to the claimant for N16, 000.00 (Sixteen thousand Naira) only on the 01-03-1991 and evidence by an agreement.
8. Upon a further series of negotiation as contained in paragraph (6) of the 10-03-1991 agreement, the permanent building (Bungalow) and half plot was sold to the claimant for another N16, 000.00 (sixteen thousand naira) only. This was evidence in an agreement dated the 30-08-1991.”

Being childless, the church permitted her to continue living in the land and be collecting rent for her upkeep until her death. It was further agreed that when Madam Mary Ekpo died she would be buried within the premises of the land in dispute. Madam Mary Eyo Ekpo died childless on 08-01-1994 and was buried on the disputed land. After burial her sister by name Mrs. Iniko Comfort C. Ekpo Kennedy applied for Letters of Administration to administer the deceased’s property which included No.38 Odukpani Road, Diamond Hill, Calabar. Mrs. Iniko comfort Eyo Eyo Paul (wife of 1st defendant/appellant) entered a caveat.

After a hearing the probate court issued Letters of Administration to Mrs. Iniko Comfort C. Ekpo Kennedy who handed over the bungalow and half plot to the claimant via an agreement dated 1st July, 2002. Nevertheless Mr. Equere Mbat Ukpe (2nd defendant/appellant) who had been living on the land would not give up possession to the claimant/1st Respondent. The Registered Trustees instituted this suit and Pleaded as follows:

“27. All effort made by the claimant to recover possession of the building has proved abortive short of using force.

28. The various suits brought by the claimant has been frustrated by the 2nd defendant one way or another.
29. Access to the church is through the permanent building (Bungalow), and the continuous illegal occupation by the 2nd defendant has caused the claimant undue stress, expense and disturbing the claimant’s religious activities.
30. Whereof the claimant has suffered damages and claims against the defendants jointly and severally as follows:

(i) A declaration that the claimant is entitled to the statutory right of occupancy over a piece of land and property known and situate at No.38 Odukpani Road, Diamond Hill Calabar.

(ii) An order compelling the defendants to hand over possession of the said property (bungalow) described in paragraph (i) here of to the claimant within seventy-two (72) hours of the delivery of judgment in this case.

(iii) An order of perpetual injunction restraining the defendant, jointly and severally either by themselves, their servants, agents, workmen, hireling and or privies in whatever guise from intermeddling, interfering and or obstructing the claimant from exercising her right of ownership of their property.

(iv) General damages of N5 million.”

The judgment favoured the claimant/1st Respondent.

The Notice of Appeal filed on behalf of the appellant on 08-07-2009 contains six (6) grounds. Godwin U. Oyong Esq. filed a brief of argument on behalf of the appellant on 20-06-2011. This was deemed properly filed and served on 28-06-2011. Though served hearing notice the appellant and his learned Counsel were absent when the appeal came up for hearing on 8th February, 2012. The Appellant’s brief was deemed adopted. Six (6) grounds of appeal were filed but learned Counsel formulated Seven (7) issues for determination as follows;

“1. Whether the trial High Court had jurisdiction to continue with the trial of the case when it became clear that the trial claimant/1st Respondent failed to prove that it was a juristic person and had no capacity to sue or put differently when it failed to decide on the question if it had jurisdiction when there was no Competent party before it?