Elder Effanga Okon Bassey Asuquo V. Dr. Archibong Okon Bassey Asuquo (2009)

LawGlobal-Hub Lead Judgment Report

MOJEED OWOADE, J.C.A.

This is an appeal against the judgment of Okoi Ham, J. delivered in the Calabar Judicial Division of the Cross River State High Court on 3rd April, 2007.

By a Writ of Summons dated 9/10/2001, the Respondent as Plaintiff claimed against the Defendant/Appellant as follows:

1. A Declaration that the Plaintiff is the owner of that piece or parcel of land together with the buildings situate and lying and being at 46, Ekondo Street, Calabar, Cross River State.
2. A declaration that the Defendant’s interest in the said parcel or piece of land situate and lying and being at 46 Ekondo Street, Calabar, Cross River State has extinguished by virtue of Deed of Gift dated the 27th day of October, 1976 between Effanga Bassey Asuquo (the defendant) and Doctor Archibong Okon Bassey (Plaintiff).
3. A declaration that the occupation by the Defendant of the Plaintiff’s said building at 46 Ekondo Street, Calabar, without the consent of the Plaintiff is wrongful and illegal.
4. An order of Mandatory Injunction compelling the Defendant to vacate and quit the said building of the Plaintiff at 46 Ekondo street, Calabar, within seventy-two hours of the delivery of judgment in this case.
5. An order of perpetual injunction restraining the Defendant his agents, descendants, servants and or privies from committing further acts of trespass concerning the said land and building situate and lying and being at 46 Ekondo Street, Calabar.
6. General Damages of N2 million only.

At the trial, the final pleadings filed by the parties were the Further Amended Statement of claim dated 9th February 2005 and filed on 10th February, 2005 (at pages 45 to 47 of the Record); the Further Amended Statement of Defence and counter Claim dated 15th May 2006 and filed 22nd May, 2006 (at pages 59 to 67 of the Record); and the Further Amended Reply and Defence to counter claim dated 9th February 2005 and filed on 10th February 2005 (at pages 48 to 49 of the Record).

As against the Plaintiff/Respondent, the Defendant/Appellant Counter claimed as follows.

(a) A declaration that the property situates and lying at No. 46 Ekondo Street, Calabar including the land thereto is the bonafide property of Effanga Okon Bassey Asuquo.

(b) A declaration that the document registered as No. 65 at page 65 in volume 114 is not a document executed by Effanga Okon Bassey Asuquo, the Defendant.

(c) A declaration canceling the purported gift registered as No. 65 at page 65 in volume 114 and expunging, the document from the Lands Registry registered as No. 65 page 65 in volume 114 in the, Lands Registry, Calabar.

(d) A declaration that the property at No. 46 Ekondo Street, Calabar does not belong to the Plaintiff in this case.

(e) A perpetual injunction to restrain the Plaintiff, the children, his descendants, agent workmen, executors, administrators from laying claim to and/or trespassing on the property at No. 46 Ekondo Street, Calabar.

The facts of the case are as follows. The Appellant and the Respondent are brothers of the same parents, and the land in dispute is a portion of a larger parcel of land at No. 46 Ekondo Street, Calabar which belonged originally to Mr. Okon Bassey Asuquo, now deceased, who was the father of both parties.

The Respondent’s case was that in 1975, when he wanted to build his residential house, their father showed him a portion of his compound at No. 46 Ekondo Street, Calabar to build the house and the respondent commenced the project on the land but stopped midway when he ran out of funds.

In 1976, the Appellant who was then based in Lagos came home and told their father that he had a major contract and needed collateral to secure a bank loan to execute the contract. He persuaded their father to execute a Deed of Gift (Exhibit 2) vesting his entire compound at No. 46 Ekondo street, Calabar on the appellant so that he can use the property as the collateral for his loan.

When the Respondent become aware of their father’s conveyance of the entire compound to the Appellant, the respondent protested against the conveyance because it affected the Respondent’s uncompleted building in that compound. So their father directed, the Respondent to survey the portion of the compound where his uncompleted building was located and after the survey he made the Appellant to execute a Deed of Gift (Exhibit 1) transferring that particular portion back to the Respondent.