Mrs. E. E. Eta v. Mrs. Etta Bassey Okon (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BALKISU BELLO ALIYU, JCA (Delivering the leading judgment)

This appeal is against the judgment of the High Court of Cross River State, sitting at Calabar (trial court) delivered on the 31st May, 2018 by Hon. Justice Emilia Ibok in respect of suit No: HC/305/2002 filed by the appellant as the plaintiff against the respondent being the defendant. The claim of the appellant against the respondent stated in the amended statement of claim are for:

1. Declaration that by operation of law and by virtue of the making and execution of the Deed of Assignment dated 13th September, 1995 and registered as No. 48 in volume 31 of the Register of Deeds in the land registry Calabar, the property situate at No. 72, Marian Road Calabar is the property of late Mr. O. E. E. Etta.
2. A declaration that any purported assignment of the property situates at No. 72 Marian Road Calabar as evidenced in the purported Deed of Assignment dated 13th September, 1995 is null, void and of no effect whatsoever.
3. An order setting aside as null and void the purported assignment of the property situate No. 72, Marian Road Calabar to the defendant, the said Deed of Assignment being a fraud.
4. An order directing and compelling the defendant to render to the plaintiff a detailed account of monies received and accruing in respect of the property situate at No. 72, Marian Road Calabar.
5. An order of perpetual injunction restraining the defendant, his relatives, agents, assigns, privies, and cohorts from trespassing into and interfering with the plaintiffs right of ownership of the property, situate at No. 72, Marian Road Calabar.
6. N5,000,000.00 (Five million naira) damages for trespass into the said property, the subject matter of this suit.

The appellants case at the trial court as captured by the facts she pleaded was that the disputed property at No. 72, Marian Road Calabar belonged to her late husband Mr. Okon E. E. Eta. Late Mr. Eta died on the 22nd June, 1995 and was buried on the 22nd July, 1995.

The appellant is the co-administratrix of late Mr. Etas estate. She claimed that she discovered a purported deed of assignment of the disputed property conveying her husband’s property situate at No. 72, Marian Road Calabar to the father of the respondent.

Upon getting a copy of the deed of assignment from the land registry, she found that it was said to have been executed on the 13th September, 1995 by her husband, but as at that date, her late husband was dead and buried. She asserted that the deed of assignment was a fraud because it could not have been executed by her late husband on the date on it. Thus, she instituted this action against the respondents father who died during the proceeding and was substituted with the Respondent, his daughter.

The respondents defence against the appellants claim contained in her amended statement of defence was that the disputed property was purchased by her father Mr. Bassey Okon from the appellants husband in September, 1994 and he paid the purchase price after which he was let in to possession of the property. Thereafter, the deed of assignment was executed by the appellants husband and the respondents father on the 1st January, 1995. The deed of assignment was subsequently registered at the Lands Registry Calabar as No. 48 at page 48 in volume 31 on the 13th September, 1995. She counter-claimed against the appellant as follows:

1. A declaration that the Deed of Assignment registered in the Lands Registry Calabar as No. 48 at page 48 in volume 31, between Mr. O. E. E. Etta and Mr. Bassey Okon (both now deceased) in respect of the property at No. 72, Marian Road Calabar is valid and subsisting.
2. A declaration that the erroneous insertion of the registration date of 13th September, 1995 as the date of execution of the said Deed of Assignment at which said date the Assignor had died does not materially derogate from the validity of the said Deed of Assignment or in the alternative.
3. A declaration that the defendant as the beneficiary of the Estate of late Mr. Bassey Okon is entitled to the statutory right of occupancy of ALL THAT property situate at No. 72, Marian Road Calabar.
4. An order of perpetual injunction restraining the plaintiff by herself, privies, agents or whomsoever on her behalf from interfering with the quiet and peaceful enjoyment of the said property by the defendant.
5. A declaration that in the light of the receipts of payment of the purchase price and other documents showing transfer of ownership, there was indeed a sale of the property by late Mr. O. E. E. Etta to late Mr. Bassey Okon.
6. An order compelling the plaintiff as the administratrix of the Estate of late Mr. O. E. E. Etta to convey the said property to the defendant.

During the trial, the appellant testified and called two other witnesses in support of her claims, while the respondent called two witnesses. After hearing evidence, final written addresses were filed and adopted by counsel. In a reserved but considered judgment, the learned trial Judge dismissed the claims of the appellant and grant most of the counter-claim of the respondent.

The appellant was aggrieved with the judgment dismissing her claims and she filed her notice of this appeal on the 2nd July, 2018 relying on four grounds of appeal to pray this court for orders:

1. Allowing the appeal.
2. Holding that a document is presumed to have been executed on the date it bears.
3. Dismissing the counter-claim in its entirety.

Upon the entry of the appeal with the transmission of the records on the 16th August, 2018, the appellant filed her brief of argument, settled by Aniekan Essiet, Esq. on the 17th October, 2018. Therein, she raised four issues from the four grounds of appeal for our determination thus:

1. Whether the court can speculate on evidence before it and set in motion what the parties did not bring before it? (Distilled from ground one).
2. Whether a written document bearing a date can rightly be presumed to have been made on that date and if the court can vary the date or speculate on same? (Distilled from ground two).
3. Whether contradictory evidence of a partys witnesses which are material to the fact in issue can be regarded as reliable? (Distilled from ground 3).
4. Whether failure to cross-examine a witness upon evidence is a tacit acceptance of the truth of the evidence of that witness. (Distilled from ground 4).

In opposing the appeal, the respondent filed the amended respondents brief of argument, settled by Essien H. Andrew, SAN, on the 15th July, 2022 deemed properly filed on the 11th October, 2022. The learned silk formulated a sole issue from the four grounds of appeal for determination as:

“Whether on the preponderance of evidence adduced in this case, the learned trial Judge was right to hold that there was a valid conveyance of title to the property in dispute by the appellants late husband to the respondents late father.”

The appellant filed reply brief on the 17th October, 2022. During the hearing, parties on both sides adopted their briefs of argument. The parties are agreed with the issues for determination in this appeal especially as the respondent in couching the sole issue conceded that it covers all the four issues raised by the appellant. Moreso, the respondents submissions in her amended brief are canvased under headings that captured the four issues raised by the appellant. For the stated reason and because the appellant owns this appeal, I adopt her four issues as formulated to be my guide in the determination of the appeal.

Issue one

Whether the court can speculate on evidence before it and set in motion what the parties did not bring before it?