Chukwuma Okwudili Ugo V Amamchukwu Obiekwe & Anor (1989)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

This is an appeal by Mr. Chukwuma Okwudili Ugo against the decision of the Court of Appeal, Enugu Division.

In suit No. E/125/72, two brothers, Amamchukwu Obiekwe and Ifeanyi Obiekwe brought an action against Mr. Chukwuma Okwudili Ugo and the Federal Mortgage Bank of Nigeria Limited claiming as per a writ of summons endorsed as follows:

“1. The plaintiffs are brothers of Christopher Sunday Okafor Obiekwe who died intestate on the 30th of November, 1959, leaving as his estate undisposed of by Will a parcel of land of approximately 1428.30 square yards in area along Agbani Road, Ogbete, Enugu and numbered 10, Agbani Road, Enugu held on lease by an instrument registered as No.34 at page 34 in Volume

251 of the Register of Deeds kept in the Lands Registry in the office at Enugu, and the beneficiaries of his said estate which estate has not been administered.

2. By an instrument registered as No.34 at page 34 volume 307 of the Register of Deeds kept in the Lands Register, Enugu, the 1st Defendant, who is a complete stranger to the said estate, purported to mortgage the said property to the 2nd defendant.
3. The entire transaction is tainted with fraud and constituted a devastavit of the estate.
4. Wherefore the plaintiffs claim against the defendants jointly and severally:-

(a) A declaration that the purported mortgage by the 1st defendant to the 2nd defendant of the parcel of land known as 10, Agbani Road, Ogbete, Enugu, by an’ instrument registered as No.34 at page 34 in volume 307 of the Register of Deeds in Enugu is null and void;

(b) A declaration that the leasehold property known as 10, Agbani Road, Enugu remains the estate of Christopher Sunday Okafor Obiekwe, deceased intestate to be distributed among his beneficiaries.”

From the plaintiffs’ pleadings in the suit, the following facts were inter alia, averred in paragraphs 1,2,3,6,7,9,10,12,13, and 14 of the statement of claim, namely:

“1. The plaintiffs are the brothers of Christopher Sunday Okafor Obiekwe (hereinafter referred to as the deceased) who died intestate on the 30th of November, 1959, and beneficiaries of his estate.

2. The deceased died a bachelor leaving his estate undisposed of by Will a parcel of land situate along the Agbani Road, Enugu, measuring 1428.30 square yards in area which said land is more particularly marked and delineated in a survey plan attached to the peed of Lease registered as No.34 at page 34 in volume 251 of the Register of Deeds in Enugu whereon it is verged pink. The said land is numbered 10, Agbani Road.
3. By a document dated 8th April, 1961, and registered as No. 28 at page 28 in Volume 255 of the Register of Deeds in Enugu the 1st defendant claimed to have been granted an irrevocable Power of Attorney without consideration by the deceased to mortgage the said land. The said document is a forgery.
4. After the death of the deceased but before the 8th of April, 1961, the 1st defendant fraudulently used the deceased’s name in applying to the 2nd defendant for a loan of money on the security of the aforesaid land.
5. By letter No. L.4140/64 dated the 8th day of April, 1961 addressed to the 2nd defendant, the Ministry of Town Planning (as it was then known) conveyed the approval of the Minister of Town Planning to the mortgage of the said property by the deceased named in the aforesaid application to the 2nd defendant. The said letter was tendered as an exhibit at the hearing of suit No. E/2/67 and will be founded upon.
6. The plaintiffs have discovered that by an Instrument dated 6th of March, 1962, and registered as No. 34 page 34 in Volume 307 of the Register of Deeds, Enugu, the 1st defendant, who is a complete stranger to the said estate, purported to mortgage the said land which comprised the said estate to the 2nd defendant in his own name to secure a loan of 1875 Pounds made to him personally and

not to, or on behalf of, the applicant named in the aforesaid application.

7. Richard Okeke Obiekwe, the father of the deceased was granted letters of Administration of the estate of the deceased on the 4th of July, 1961.
8. The 1st defendant claims to have purchased the said land for 1,500 Pounds from the administrator of the said estate, which claim is false. There is no instrument assigning the said property to the 1st defendant for a consideration of 1,500 Pounds or for any other consideration nor was the consent of the appropriate Minister sought for or obtained for any such assignment as required by clause 2(4) of the aforesaid Deed of Lease of the said property to the deceased and s.6(b)(iii) of the State Lands Law, nor was the consent or approval of the plaintiffs as beneficiaries sought, let alone given.
9. The plaintiffs will contend at the trial that if the said administrator sold the said deceased’s estate to the 1st defendant, which is denied, the sale constituted a devastavit.
10. The plaintiffs have discovered a document dated the 18th day of September, 1961 and registered as No.78 at page 78 in Volume 273 of the Register of Deeds in the Lands Registry, Enugu, executed by the said administrator of the estate of the deceased purporting to assign the said estate to himself and the 1st defendant for the residue then unexpired of the term of seven years, which said term of seven years expired on the 31st of December, 1965.
11. The plaintiffs will contend that the said purported assignment is fraudulent, null and void to the knowledge of the 1st defendant.
12. The plaintiffs contend that the 1st defendant has not, and never had, any valid, legal title to the estate and could not have conveyed, and did not in law convey, any valid title to the 2nd defendant.
13. The plaintiffs contend that the purported mortgage of the said estate by the 1st defendant to the 2nd defendant is tainted with fraud and is null and void.”

In his statement of defence the 1st defendant joined issues with the plaintiffs on some of the above facts. Relevantly for this appeal he pleaded in paragraphs 1, 2, 3, 4, 15 and 16 of the statement of defence, as follows:-

“1. The first defendant admits paragraph 1 of the Statement of claim to the extent that the plaintiffs are brothers of Christopher Sunday Obiekwe who died on 30th November, 1959 but denies the rest of the said paragraph and would put the plaintiffs to the strictest proof thereof.

2. The 1st defendant denies paragraph 2 of the Statement of claim and adds that the said parcel of land technically vested in the Estate of the deceased. According to Mr. R.O. Obiekwe (now also deceased) who was the father of the deceased (Christopher Sunday Obiekwe), he the father acquired this land in the name of his son (the deceased) and he had control over the land particularly after the death of his son Christopher Sunday Obiekwe, hence the Lease to the said land was registered in the name of his deceased son on December 22, 1960 as No.34 at page 34 in Volume 251 of the Register of Deeds in Enugu, that is to say, after the death of his son on November 30th, 1959.
3. Paragraph 3 of the statement of claim is denied as averred. The 1st defendant invested money on the plot of land and demanded a document to protect his interest. Mr. R.O. Obiekwe and his solicitor gave him the executed Power of Attorney. This Power of Attorney was later superseded by subsequent instruments and was never put into any use by 1st defendant.
4. The 1st defendant denies paragraph 4 of the statement of claim. It is untrue that the 1st defendant used the name of the deceased in applying to the 2nd defendant for a loan on the security of the land, let alone doing so fraudulently. Mr. R.O. Obiekwe (the father of the deceased) as well as the officer of the 2nd defendant at Enugu at the material time were completely aware of the facts and circumstances leading to the offer of this parcel of land as security for the loan to be given to the 1st defendant by the 2nd defendant. It was the 2nd defendant with the knowledge of Mr. R. O. Obiekwe who arranged all that was necessary to secure the mortgage. The first defendant shall rely on-

(a) the application for the loan written by him;

(b) the reply from the 2nd defendant;