MR. Essien Nyong Etim V. MR. Bassey Bassey Effiong (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME, J.C.A.(Delivering the Leading Judgment)

The Appellant was the Defendant at the trial Court in the Suit filed by the Respondent herein as Claimant. Judgment was entered against the Appellant in favour of the Respondent by AKON, B. IKPEME, J, of the Calabar Judicial Division of the Cross River State High Court in Suit No. HC/172/2008 delivered on the 12th of December, 2012.

Aggrieved by that decision, the Appellant has appealed against the said judgment.

SUMMARY OF FACTS:

The Respondent as Claimant at the trial Court brought an action before the High Court of Cross River State claiming a declaration that he is entitled to the statutory right of occupancy over the property situate at No. 1 Effio Ene Street, Calabar which he claimed he inherited from his mother, late Mrs. Nkoyo Edet Ekanem.

The Respondent claimed that his late mother acquired the disputed property from Mrs. Affiong Edet Ekanem (his Grandmother) who in turn acquired the said property by customary grant from Mrs. Eka Nne-Ata. The Respondent claimed that he lived in the disputed property in the life time of his late mother and Grandmother from his birth

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in 1972 till when his mother died in 1999.

It is the Respondent’s case that upon the death of his mother, the Appellant (defendant at the trial Court) entered into the disputed property and pulled down one of the buildings erected by the Respondent and also destroyed a Toyota Bus valued at N500,000 (Five Hundred Thousand Naira) belonging to a third party.

On his own part, the Appellant who defended the suit at the trial Court through his Attorney, Essien Nyong Etim (DW1) contended at the trial that the disputed property belonged to his late mother, Madam Affiong Edet Ekanem (the Respondent’s mother). That his mother acquired the disputed property through one Madam Atim Effio Ene.

The case went to trial at the conclusion of which the Learned trial Judge held that neither the Respondent nor the Appellant proved exclusive right or title to the disputed property and therefore claims of the Respondent and the counter claim of the Appellant failed. The Learned trial Judge however held that the Respondent should inherit both the one room he occupied and the two rooms occupied by his late mother in the disputed property during her lifetime, while the

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Appellant’s siblings should share the remaining rooms and the empty land on the disputed property. The trial Judge also ordered that the Respondent is estopped from developing or building any structure on the empty portion of the disputed property. Dissatisfied with that judgment the Appellant brought his appeal and formulated five issues for determination thus:

1. “Whether the Learned trial Judge was right when after he dismissed the claims of the Respondent as well as the counter-claim of the Appellant, he proceeded to award to the Respondent what he did not pray the Court for.
2. Whether from the facts and circumstances of the case, the Appellant (then defendant/ counter-claimant) could not be said to have proved his counter-claim?
3. Whether from the facts and circumstances of the case, the Appellant (the defendant/counter-claimant) could not be said to have adduced ample and even sufficient evidence, be it documentary and otherwise, to prove that at the expiration of the original lease, he renewed the lease in his name after his sister and brothers including the Respondent’s mother gave their consent for him to do so.
4. Whether from

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