Calabar Central Co-operative Thrift & Credit Society Ltd & Ors. V. Bassey Ebong Ekpo (2008)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN, J.S.C

This is an appeal against the judgment of the Court of Appeal holden at Calabar in appeal No. CA/C/5/99 delivered on the 24th day of April, 2007 in which the court dismissed the appeal of the appellants against the judgment of the High Court of Cross River State holden at Calabar in suit No. C/11195 delivered on the 20th day of November, 1995 in which it entered judgment for the present respondent who was the plaintiff in the suit.

The action was instituted by respondent by way of originating summons for the determination of the question;

whether, in accordance with the Land Use Decree 1978, valid title has been passed from the plaintiff to the 1st defendant arising from the agreement of 25th January, 1987, over the plaintiff’s property situate at No. 3C Enebong Avenue, Calabar”

In addition to the above question, the plaintiff/respondent sought the following reliefs:-

“(A) A declaration that the purported conveyance is null, void and of no effect whatsoever and is against the provisions of the Land Use Decree of 1978.

(B) An order directing the 1st defendant, its agents, servants, privies, assigns to vacate the property situate at No. 3C Enebong Avenue, Calabar.

(C) An order directing that the original documents of the survey and building plans and the agreement originally conveying the plot/parcel of land known as 3C Enebong Avenue, Calabar to the plaintiff be returned to the plaintiff.

(D) The sum of N400,000.00 (Four hundred thousand Naira) as general damages.”

The facts leading to the action include the following: The plaintiff/respondent was employed as a clerk by the 1st defendant/appellant sometime in July, 1964 and rose to the position of Senior Travelling Secretary by May, 1974. In June, 1987 the respondent was, by a letter, exhibit B suspended from his employment by the 1st appellant on the ground that the respondent perpetrated some fraudulent acts which tarnished the image of the 1st appellant, pending the result of an investigation into the matter. The suspension was with immediate effect. The respondent was subsequently arrested by the police at the instance of the appellants and detained for investigation and/or interrogation. In all, the respondent was arrested three times in the course of the investigation, the third of which saw the respondent being taken by the police to the Police Headquarters at Diamond Hill, Calabar where he was shown round the police cells occupied by hardened criminals (murderers and rapists) and was told by the police to sign a deed of “Mortgage” over his property situate at No. 3C Enebong Avenue, Calabar, to surrender his ownership of the said property to the 1st appellant in exchange for or discharge of an alleged debt of N80,000.00 to the 1st appellant by the respondent with a threat of being thrown into the cells with the criminals, if he refused to comply. The respondent stated that he had no option than to sign Exhibit A which turns out to be a conveyance and handed over all the original documents relating to the said property to the 1st appellant, after which he was released by the police; that up to the time of instituting the action, the appellants had not released the result of the investigation or informed him of the outcome of any wrong doing or fraud he allegedly committed. Respondent maintained that the appellants exercised undue influence or duress over him resulting in his signing of exhibit A and that the appellants had thereby defrauded him of his property.

On the other hand, it is the case of the appellants that the respondent was suspended from duty on the ground that the respondent, in the course of his employment with the 1st appellant, defrauded the 1st appellant to the tune of N80,000.00 which later increased to N100,000.00 following the audit of the 1st appellant’s accounts by auditors; that the .respondent admitted his role in the fraud at a management committee meeting of the 1st appellant as evident in exhibit A attached to the counter affidavit the minutes of that meeting. The appellants denied ever intimidating the respondent in executing exhibit A attached to the affidavit in support of the originating summons; that the conveyance, exhibit A – was a voluntary act of the respondent to avoid criminal prosecution for the fraud committed on the 1st appellant.

The learned trial judge, at pages 41 to 42 of the record held thus:

“On the whole, I hold the view that fraud against the plaintiff has not been proved. If so, the plaintiff should have been charged to court. The idea of converting what should have been a criminal case into a civil one is wrong. The purported exchange of a house for the sum of N80,000.00 as contained in Exhibit A is completely wrong in law. Exhibit “A” itself form (sic) the foregoing is not valid in law, the transaction being a nullity.

Having regard to all the foregoing, I think I should accede to the reliefs sought and do so accordingly by making the following orders of this court….. ”