Etim Okokon Ita & Anor V. Nkoyo Ekpenyong & Anor (2000)

LawGlobal-Hub Lead Judgment Report

EKPE, J.C.A.

This is an appeal against the judgment of Hon. Justice Ecoma, Chief Judge of Cross River State, dated 23rd October, 1995 and delivered at the Calabar High Court in suit No. C/138/76.

In the writ of summons issued at the Calabar High Court and dated the 23rd day of September, 1976, the plaintiffs claimed against the original defendant on record, Chief Okokon Ita Nyoki, now deceased the following reliefs:

Declaration that the property known as No. 37 Goldie street, Calabar is the property of the Estate of late Madam Umo Ekpo Edem Odo.

2. Recovery of possession of their mother, Madam Umo Ekpo Edem Odo’s property known as No.37 Goldie Street, Calabar now in the possession of the defendant.
3. An injunction to restrain the defendant by himself, by his agent or assigns from further meddling with the said estate.”

Pleadings were ordered, filed and exchanged. While the suit was pending in the court the original defendant on record died and was by an order of the court pursuant to an application substituted by his children the present defendants on record.

At the hearing the 1st plaintiff (Nkoyo Ekpenyong) testified as PW1 and tendered as Exhibit 1, the certified true copy of record of proceedings in the unconcluded earlier trial of the suit wherein the 1st plaintiff and two other witnesses namely, Bassey Edem Odo and Ekpenyong Eyo had testified as PW1, PW2 and PW3 respectively for the plaintiffs. The plaintiffs closed their case.

The defence opened. For the defence, the 2nd defendant testified as DW1 and called two other witnesses as DW2 and DW3. Thereafter the defence case was closed.

At the close of the case for the parties, Counsel on their behalf addressed the court. In a considered judgment, the learned trial Chief Judge concluded as follows:

“It is therefore my view after considering the facts put forward by the plaintiffs that they are facts which would entitle them to succeed on the balance of probabilities. The defendants have failed to produce evidence to show that there was a valid sale. The plaintiffs have proved that the property in question belong to their late mother. Any purported sale of the said property by a 3rd party is void. On the recovery of possession, I think since the plaintiffs are entitled to possession, they are right to ask for possession from anyone under whom the property is in possession.”

Consequently, the learned trial Judge entered judgment for the plaintiffs against the defendants in terms of the plaintiffs’ claims.

Aggrieved by this judgment, the Defendants have appealed to this Court on six grounds of appeal.

Let me at this stage set out the relevant facts of this case which gave rise to this appeal. The plaintiffs are the only surviving children of one late Madam Umo Ekpo Edem Odo who died in 1937. The 1st plaintiff was born on the 12th of February, 1928, while the 2nd plaintiff was born on the 30th of January, 1935. Two other children of the late Madam Umo Ekpo Odo had predeceased her. The late Madam Umo Ekpo Edem Odo was the undisputed owner of the property known as No. 37 Goldie Street, Calabar which was granted to her by the Queen Duke family to which she belonged. She built a mud and wattle house on the property and lived there with her husband and the plaintiffs until she died. At the time she died, the 1st plaintiff was nine years old while the 2nd plaintiff was only two years old. As at that time, the plaintiffs did not know that their late mother was the owner of the said property, No.37 Goldie Street, Calabar, now the subject-matter of the dispute in this suit. After the death of the plaintiffs’ mother, their father vacated No. 37 Goldie street, Calabar and took plaintiffs to Creek Town, Calabar where they stayed until the 1st plaintiff got married and went away to live with her husband at Awka in Ibo land taking away with her the 2nd plaintiff. On her return to Calabar from Awka before the Nigerian Civil war, her father took her to No.37 Goldie Street, Calabar, the disputed property, and told her that it belonged to her late mother. The deceased defendant on record was occupying the house at the time. The 1st plaintiff made several efforts to recover the property from the deceased defendant on record including consulting a solicitor who wrote to the defendant to handover the property to her, but she failed. She denied that her mother sold the property to anybody. She also denied that the property was sold to defray any funeral expenses of her late mother’s burial as alleged by the deceased defendant. According to the 1st plaintiff, the funeral of her late mother was arranged by her father and one Chief Bassey Edem Odo, a relation of her mother.

The Defendants’ case on the other hand is that the late Madam Umo Ekpo, the mother of the plaintiffs, was sick and she sent one Okon Edem Odo to their father, the deceased defendant on record, to buy the said property at No. 37 Goldie Street, Calabar in order to make money available for her burial upon her death and their father bought the property for ?100. It was also their case that a receipt was issued to their father for the sale of the property but it was lost during the Nigerian civil war. Then after the Nigerian civil war the plaintiffs wanted their father to return the property to them and collect back the ?100 purchase price but their father refused. That their father had carried out renovation, built some rooms and stores on the property, and so the plaintiffs are not entitled to the ownership of the property.

In accordance with the Rules of this Court, the parties through their respective counsel filed and exchanged briefs of argument. The Defendants now Appellants have identified four issues for the determination of the appeal, to wit: