Mrs. Antonia E. Umoffia V. Mrs. M.c. Ndem (1973)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C. 

This is an appeal from the judgment of the High Court of South Eastern State holden at Calabar. In Suit No. C/49/1969 the plaintiff, herein respondent, claimed against the defendant also, herein appellant, “recovery of possession of a piece of land at No. 35 Webber Street, Calabar.”  Throughout this judgment, the terms “plaintiff” and “defendant” respectively will be retained wherever applicable.

Pleadings were ordered and duly filed and delivered.

As our decision in this appeal must, of necessity, turn on the pleadings in relation to the evidence led and considered by the learned trial Judge, we consider it necessary to set out in some detail certain parts of the pleadings which were filed and relied upon by both the plaintiff and the defendant. For this purpose we consider only paragraphs 1, 2, 3, 5 and 7 of the statement of claim and paragraphs 3, 4, 5 and 9 of the statement of defence relevant and sufficient.
In paragraphs 1, 2, 3, 5 and 7, the plaintiff averred as follows:-

“1.   Once there lived two sisters Madam Efiom Ene (alias Nkoyo Ene) and Ukpong Ene. In 1931 they jointly obtained a plot of land on a lease from the Efut Combined Council. The plot of land is known as 35, Webber Street, Calabar. The lease was in 1946 converted into a freehold property upon payment of a lump sum of money and customary drinks to the then Muri of Efut, Chief Asuquo Nyong Odionka.

2.     The land is reproduced by the colour pink on plan No. EPS/732 (LD) dated 10th January, 1970 prepared by Mr. Okon E. Eyo, licensed Surveyor.

3.     The sisters jointly built a house on the land and lived there with their children until they died.  Madam Efiom Ene died in 1963 and Madam Ekpong Ene in 1968. The plaintiff and L.O. Ibok are children of Madam Ukpong Ene.

5.     In 1962 the plaintiff had submitted to the Calabar Urban District Council the plan of a concrete building he proposed to erect on the land, and the plan was approved.

7.     Meanwhile, the time allowed by the Calabar Urban District Council for the putting up of the concrete building on the approved plan had run out; and the plaintiff had to apply in September, 1969 for an extension of time which was duly granted.”

In answer to these averments the defendant pleaded in paragraphs 3, 4, 5, and 9 of her statement of defence in the following terms:-

“3.   It is denied that the two women mentioned in paragraph 2 above ever obtained a lease of the plot of land now known as 35, Webber Street, Calabar from the Efut combined Council jointly or singly in 1931 or at all. It is further denied that they converted any such lease into a freehold in 1946 or at all.

4.     Paragraph 2 of the statement of claim is admitted. It is added however that defendant’s beacon stones numbers are omitted from the said plan. Counting from the North West, the beacon stones are SEB 142, North East SEB 143, South East SEB 144 and South West SEB 145.

5.     In answer to paragraph 3 of the statement of claim, defendant first went into possession of the land in dispute in 1968. There was no building on the land in dispute which was a vacant plot. By a deed dated 20th day of October, 1969, the defendant was granted the land in dispute rent free after making the customary gifts. Defendant is a descendant of the Efut families and was such granted the land in dispute by the Efut combined Council. Muri Edet Edem, the present head of Efut and Chairman of the Efut combined Council signed the deed. The said deed is registered as No. 10 at page 10 in Volume 1 of the land registry at Calabar.

9.     Paragraph 6 of the statement of claim is denied. Plaintiff has never been in possession of the land in dispute and on the 20th October, 1969 was not in possession of the land in dispute and was not entitled to be in such possession. When defendant took possession of the land in dispute, it was vacant.”