Francis Anaeze V. Ude Anyaso (1993)

LawGlobal-Hub Lead Judgment Report

WALI, J.S.C.

By a Writ of Summons filed in the Aba Division of the Imo State High Court, the plaintiff claimed against the defendant for the following reliefs:

“(a) Recovery of possession of a house and land known as No.70 Danfodio Road, Aba in the Aba Urban Division.

(b) An account of all the rents collected by the defendant from the tenants of the said house and land known as No.70 Danfodio Road, Aba from 1964 until possession is given up.”

Pleadings were filed, amended and exchanged. The defendant also filed a counter claim. At the end of the hearing the learned trial Judge, Mbachu J., entered the following judgment for the plaintiff:-

“In the circumstances the plaintiff succeeds in his claim for declaration that he is the lessee of the property known as Plot 5 in Block 159 Aba otherwise known as No. 70 Danfodio Road, Aba. He is therefore entitled to possession and I order that the defendant vacates the premises on or before 30th November, 1985. I deem it unfair to grant the plaintiff’s claim for account of the rents collected by the defendant from tenants nor will it be fair and just to order the plaintiff to refund 1,300 pounds to the defendant; the contract between them is frustrated and unenforceable and each party should bear his own loss. I make no order as to costs.

Aggrieved by the judgment of the trial court, the defendant lodged an appeal against it in the Court of Appeal Port Harcourt Division. His appeal was dismissed. The Court of Appeal affirmed the judgment of the trial court.

The defendant has now further appealed to this court against the judgment of the Court of Appeal.

Henceforth both the defendant and the plaintiff will be referred to as the appellant and the respondent respectively.

In addition to the original grounds of appeal filed in this appeal, the appellant sought for and obtained leave to file and argue one additional ground of appeal. This was done.

The simple facts of this case as revealed in the pleadings filed and the evidence adduced by the respondent are as follows:-

The plaintiff/respondent Ude Anyaso is the lessee of State Land property registered as Plot 5 in Block 159, otherwise known as No. 70 Danfodio Road, Aba. This property was assigned to him by Nwana Kalu by a deed of assignment dated 22nd February, 1955 and registered as No. 17 at page 17 in Volume 124 of the Land Registry then in Enugu.

In order to obtain credit facilities from the African Continental Bank Aba, the respondent, sometime in 1955 created an equitable mortgage in favour of the African Continental Bank by depositing with them the title deed of No. 70 Danfodio Road, Aba. In return, the African Continental Bank granted the respondent the credit facilities and issued him with Exhibit “A” titled MEMORANDUM of DEPOSIT of DEEDS to secure the ACCOUNT of a THIRD PARTY as well as the ACCOUNT of the DEPOSITOR.”

When the lease referred to above expired on 31st December, 1960, the respondent re-newed it for another term of 40 years, i.e. from 1/1/61 to 2000. The renewed lease was registered as No. 20 at page 20 Volume 368 in the Land Registry in Enugu. However the respondent did not deposit the renewed lease with the African Continental Bank, Aba.