Veronica Graham & Ors V. Lawrence Ilona Isamade Esumai & Ors

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

The appellants herein were the defendants at the Onitsha High Court in Suit No.0/47/76. In that suit the plaintiffs (respondents herein) had, in a representative capacity, sued the appellants claiming the following reliefs:

“(a) Declaration of title to the property/premises known and situate at No.3 Moore Street, Onitsha within the jurisdiction of the Honourable Court, annual value N10.00;

(b) N200.00 (Two Hundred Naira) damages for trespass;

(c) Perpetual injunction to restrain the defendants, their agents, successors in title and assigns from further acts of trespass on the said property/premises, No.3 Moore Street, Onitsha.”

Pleadings were duly ordered, filed and exchanged. The plaintiffs in their amended statement of claim pleaded that their father, late Isamade Esumai, purchased a piece of land from the Mgbelekeke Family of Onitsha, which included the property in dispute, for the purpose of erecting a building in which he would live with his family; that the purchase price paid by their father was –

(a) one bottle of gin (b) one head of tobacco and (c) one piece of cloth; that at that time one Madam Victoria Onyemulu had already built a two-room bungalow on a piece of land north west of the land in dispute; that both Madam Victoria Onyemulu and the plaintiffs’ father had been boundary neighbours all the time; that the plaintiffs’ father erected a residential building on the land purchased by him and lived there with his wife; that after their father’s death, the plaintiffs and their other relations continued to live in the house, that in 1955 after the death of their father, the 1st plaintiff, for and on behalf of the other relations granted a lease of the property in dispute to one Patrick Anyachebelu for a period of twenty-five years; that under the said lease the plaintiffs and their mother were to own and occupy some rooms on completion of the house by Patrick Anyachebelu; that the said Patrick Anyachebelu died about 1957 after erecting a bungalow of three rooms, two shops, a kitchen, a latrine and a bathroom in accordance with the terms of the lease; that the plaintiffs and their mother occupied the three rooms; that in 1967 during the civil war, the plaintiffs and their mother deserted the property; that after the war in 1970 the plaintiffs returned to the property; that as the main bungalow built by Patrick Anyachebelu had been destroyed, they erected an improvised structure on the property where they continued to live;

that in 1976 the plaintiffs entered into a new lease agreement with a company known as I. I. Udeaja & Sons Ltd; that under the terms of the lease, the company were to erect a permanent building on the property and the plaintiffs were to own and occupy some rooms in the building, while the stores and shops in the building were to be occupied by the said company as tenants; that when the said building had reached the “window- level” stage, the defendants, acting in concert, broke and entered the property, pulled down the structure so far erected, and destroyed and damaged their cement blocks, windows and door frames.

In their statement of defence, the defendants averred that the land in dispute was part of a larger area of land acquired by their relation, Madam Victoria Onyemulu, under Kola tenancy from the Mgbelekeke family of Onitsha; that the plaintiffs’ father Isamade Esumade once served as a domestic retainer of Madam Victoria Onyemulu; that it was when the plaintiffs’ father wanted to marry that Madam Onyemulu permitted him to erect a hut on the land in dispute; that in 1945 Madam Victoria Onyemulu invited the plaintiffs’ father to buy the land on which he had erected his hut or vacate the place to enable Madam Onyemulu sell the same to other people; that as the plaintiffs’ father was unable to raise the necessary amount, half of the land was sold by Madam Victoria Onyemulu to one Madam Akaba; that soon after this event, Madam Onyemulu died and no member of her family took any further action to evict the plaintiffs’ father who continued to live on the land in dispute with his family.

The defendants admitted the lease of the property to Patrick Anyachebelu as pleaded by the plaintiffs but contended that the lease was in fact authorised by their father, Charles Graham. They also admitted that the plaintiffs deserted the property during the war; that the property was in fact destroyed and that after the war, the plaintiffs returned to the place and resumed occupation of the damaged building. They, however, denied committing any acts of trespass on the property as alleged by the plaintiffs.

At the trial evidence was adduced by all the parties in support of their pleadings, and at the end of the day, the learned trial judge, Awogu, J, dismissed the plaintiffs’ claim in respect of title and injunction but non-suited the claim in respect of damages for trespass. The defendants did not appeal against the order of non-suit in respect of the claim for trespass. However the plaintiffs (i.e. the respondents herein) appealed to the Court of Appeal against the whole judgment on various grounds.

In their judgment the Court of Appeal dismissed the respondents’ claim for declaration of title and there is no appeal against that decision in this court. It also set aside the judgment of the Onitsha High Court as regards damages for trespass and injunction and awarded N200.00 damages for trespass in favour of the respondents herein as well as an order of injunction against the appellants. It is against this decision that the appellants have appealed to this court.

Originally, four grounds of appeal were filed. But when the appeal came up for hearing on 2nd October, 1984, two of those grounds – grounds 1 and 3 were struck out. This was because these grounds raised questions of mixed law and fact for which no leave was obtained pursuant to section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979.

Ground 2 of the original ground of appeal complains of an error in law and what is called ‘non-direction’. It reads as follows: