Gbenga Olorunfemi V. Nigerian Educational Bank Ltd. (2002)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A.

This matter was heard denovo by this court on the 12/2/2002. The matter was heard earlier by a different panel and when an issue was discovered requiring the parties to make further address and to file supplementary briefs, the matter was heard afresh by a different panel of this court. The matter started this way. In the High Court of the Federal Capital Territory Abuja and in suit No. FCT/HC/CV/189/96, the plaintiff vide paragraph 22 of the amended statement of claim claimed against the defendants the following reliefs:

“22 Whereof the plaintiff claims against the defendants jointly and severally as follows:

(a) A declaration that the powers of ownership contained in the power of Attorney of the 7/4/1993 have passed to the plaintiff and that he is entitled to the possession of the said property.

(b) Possession of the property from the occupants of the property in good and tenantable repairs.

(c) The rent of N665.583.34 being the balance of the rent collected by the first defendant from the 2nd defendant from April 1984 until the three years tenancy expires in September, 1996.

(d) Tenancy calculated at N22,916.66 per month from 1st and 2nd defendants being the monthly prorata rent on N275,000 per annum from September, 1996 until judgment and delivery up of possession to the plaintiff.

(e) A rental of N20,000 per month from the 1st and 3rd respondents from April 1994 until judgment and delivery up of possession of the two bedroomed flat to the plaintiff.

(f) N 2,000.000.00amages against the defendants for trespass.

(g) IN THE ALTERNATIVE the plaintiff claims N21,769,6l6.21, in return for relinquishing its claim of ownership of the plot.”

The defendants in the court below were the appellant herein as the 1st defendant, United Bank For Africa Plc as the 2nd defendant and Albert Legogie as the 3rd defendant. The 2nd and 3rd defendants never appeared at the trial. It was the appellant herein as the 1st defendant who appeared at the trial where he resisted the plaintiff’s claims and set up a counter-claim. At the trial the plaintiff called one witness and the 1st defendant appeared only once and took no further part in the proceedings. Based on the evidence adduced before him the trial Judge, Saleh CJ, partially found for the plaintiff. It is against this decision that the first defendant felt unhappy and had appealed to this court. Now the plaintiff shall hereinafter be called the respondent while the first defendant, the appellant.

The notice of appeal was amended with the leave of the court and the final grounds of appeal are:

1. The decision of the lower court is against the weight of evidence.
2. The learned trial Chief Judge erred in law when he held as follows:

“Consequently I grant the plaintiff prayer in paragraph 22 of the statement of claim, that is exhibit 5 is valid and passed on the plaintiff rights and obligations of Alpha therein by virtue of exhibit 11 and so plaintiff is entitled to be paid his money plus interest from 1st, 2nd and 3rd defendants. and this error occasioned a miscarriage of justice.

Particulars of Error