Calabar Central Co-operative Thrift & Credit Society & Ors. V. Bassey Ebong Ekpo (Substituted by Edet Bassey Ekpo) (2001)

LawGlobal-Hub Lead Judgment Report

EKPE, J.C.A.

By an Originating Summons issued at the instance of the plaintiff now respondent by Calabar High Court of Cross River State, against the defendants now appellants, the respondent sought for the determination of the following 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.”

(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 respondent filed an affidavit of 18 paragraphs in support of the Originating Summons with Exhibits A, B, and C and later further and better affidavits in support thereof. The appellants filed a counter-affidavit with Exhibits A, B, and C to C4 and D and a further and better counter-affidavit in opposition to the Originating Summons.

From the affidavits and counter-affidavits of the parties, the pertinent facts of the case of each side, leading to this appeal may be stated thus: The respondent’s case is that he was employed as a Clerk by the 1st appellant in July, 1964, and by May, 1974, he had risen to the position of a Senior Travelling Secretary, in the 1st appellant’ company. On 24th June, 1987, the respondent was suspended from duty by the 1st appellant pursuant to a letter of suspension, marked Exhibit B annexed to the respondent’s main affidavit. In Exhibit B, the respondent was accused of having perpetrated some fraudulent acts which tended to tarnish the image of the 1st appellant and he was therefore, ordered to go on immediate suspension pending the result of an investigation into the matter by the 1st appellant. The 2nd and 3rd appellants were the president and member respectively of the management committee of the 1st appellant company. Consequent upon the accusation, the respondent was arrested by the police at the instance of the appellants and was taken to the police station Atakpa, Calabar, where he was detained for interrogation and investigation. He was later released on bail on the same day. This was followed by the second and third arrests by the police. Upon the third arrest, the respondent was taken to the Police Headquarters at Diamond Hill, Calabar, where he was shown round the police cells by the police. The cells were occupied by hardened criminals, murderers and rapists. After showing him the cells, the police told him (the respondent), to sign a deed of “Mortgage” over his property situate at No. 3C Enebong Avenue, Calabar, by which his ownership of the said property would be given to the appellants, in exchange for or discharge of an alleged debt of N80,000.00 owed to the 1st appellant by the respondent and that, if he refused so to do, he would be thrown into the police cell, where the criminals were detained. The said deed of “Mortgage” is Exhibit ‘A’ annexed to the main affidavit of the respondent, which turns out to be a deed of conveyance. It is the case of the respondent, that in view of the psychological trauma, the shame of having been arrested several times by the police, the imminent torture that he was likely to undergo in the police cell, by the said criminals and the frail state of his health, he was obliged to sign Exhibit ‘A’ and to hand over all the original documents pertaining to his said property to the appellants. He maintained that after signing Exhibit ‘A’, he was eventually freed from further intimidation by the appellants, but he had no house to go into, as he had given away his only house at No. 3C Enebong Avenue, Calabar, to the appellants by virtue of Exhibit ‘A’. The respondent also asserted that, up till the time of his instituting this action, the appellants had not released the result, of their investigation or informed him of the outcome of any wrong doing or fraud, he was alleged to have committed. He maintained that, the appellants exercised undue influence or duress over him to sign Exhibit ‘A’ and by so doing, the appellants had defrauded him of his said property. The respondent denied defrauding or owing the appellants any sum of money whatsoever, or as was indicated in Exhibit ‘A’.

The case of the appellants on the other hand is an absolute refutal of the respondent’s story. They stated that the respondent who was an employee of the 1st appellant, was suspended from duty as he was found to have in the course of his duty 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. The appellants claimed that the respondent had admitted his role in the fraud at a management committee meeting of the 1st appellant. The minutes of the said meeting were annexed to the appellant’s main counter-affidavit as Exhibit ‘A’. Hence, the appellants reported the matter to the police. The appellants denied intimidating the respondent in executing Exhibit ‘A’, the deed of conveyance and insisted that the respondent executed Exhibit ‘A’, when it dawned on him (the respondent) that he was neck-deep in the fraud, and was likely to face a multiplicity of criminal prosecutions and civil suits from the 1st appellant and so the respondent offered to sell his said property to the 1st appellant in settlement of the debt he owed, to the 1st appellant as arising from defrauding the 1st appellant of the amount involved. The appellants annexed Exhibit ‘B’ to their main counter-affidavit, to show that there was no intimidation of the respondent, but that the respondent expressed his desire to sell his said property to the 1st appellant.

In a considered ruling dated 20/11/95, after hearing the Originating Summons, the learned trial Chief Judge, Ecoma, C.J. at pages 41 to 42 of the main record of appeal stated thus:

“On the whole, I hold the view that fraud against the plaintiff (respondent) 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 from (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.”

The learned trial Chief Judge finally granted reliefs A, B, and C claimed by the respondent, but as regards, relief D, he awarded the sum of N100,000.00 as general damages to the respondent.