Princess Enang Ephraim Adam & Ors V. MR. Bassey Ewa Henshaw & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL OBI ELECHI, J.C.A. (Delivering the leading Judgment)

This is an appeal against the judgment of the Federal High Court Calabar Division in suit No. FHC/CA/CS/102/2000 delivered on the 22nd day of February, 2007 dismissing the Plaintiffs/Appellants suit. Against the said decision, the Plaintiffs/Appellants have now filed a Notice and Grounds of Appeal to this court to enable them ventilate their grievances.

Hitherto, the plaintiffs by a Writ of Summons and Statement of Claim filed in Court on the 6th day of October, 2000 claims from the defendants jointly and severally as follows and set out in paragraph 28 (1) (2) (3) (4) (5) (6) (7) and (8) of the Amended Statement of Claim pursuant to an order of Court dated 10th July, 2002.

1) A Declaration that the purported sale of the property at No. 27 Edgerly Road Calabar by Icon Limited (Merchant Bankers) to Ita Offiong Okoho as evidenced by the Deed of Assignment dated 1st February 1995 and deed of Release dated 25th November, 1992 is wrongful, illegal, null and void on Grounds that Ita Offiong Okoho is a non existing person.

2) A Declaration that the Deed of Assignment dated 1st February, 1995 and the Deed of Release dated 25, November 1992 transferring the aforesaid property to Ita Offiong Okoho is shredded in fraud and therefore illegal, null and void.

3) An order setting aside the purported sale and the release of the property at No. 22 Edgerly Road Calabar by Icon Ltd (Merchant Bankers) to Ita Offiong Okoho.

4) An Order setting aside the purported Deed of Release dated 25th November, 1992 by Deed of Assignment dated 1st February, 1995 made by 4th Defendant with respect to No. 27 Edgerly Road Calabar for being irregular and improper.

5) A Declaration that Elder Ita Nsemo is not the same Person as Ita Offiong Okoho.

6) A Declaration that Elder Ita Offiong Nsemo is not the same Person as Ita Offiong Okoho.

7) Six Million Naira damages for trespass.

8) Perpetual injunction restraining the defendants particularly the 2nd defendant, their agents, servants, privies, assigns or otherwise howsoever from interfering with the Plaintiffs enjoyment of the property at No. 27 Edgerly Road Calabar.

The 2nd and 3rd Defendants/Respondent filed their own Amended Statement of Defence on the 21st September, 2004 while the 3rd and 4th Defendants/Respondents filed their joint Statement of Defence via a Motion on Notice for Extension of time on the 28th October, 2004. The plaintiffs also filed a Reply to the Statement of Defence of the 4th and 5th Defendants/Appellants.

Worthy of note is that the plaintiffs/Respondents though served with the originating processes in the suit at the court below refused to enter appearance nor file any pleadings in defence of this suit. On the other hand, the 4th and 5th Defendants/Respondents only filed their Statement of Defence but did not call evidence in this case but rather through their counsel only cross-examined PW1 and nothing more.

The facts leading to this appeal are that on the 12th day of October, 2000, the trial court granted leave to the Appellants to sue in a representative capacity. Upon the grant of the said leave, no other Writ of Summons was presented to the Court for issuance apart from the one filed prior to the grant of leave and there is only one writ of summons for the entire suit.