Emeka Aguocha V. Ezenwa Aguocha (2004)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

This is an appeal against the decision of Kaduna State High Court of Justice, delivered by Makeri, J., granting all the reliefs respondent claimed and dismissing the appellant’s counter-claim.

The plaintiff’s claim endorsed on the writ of summons he caused to be issued against Ochi Aguocha reads as follows-

“1. A declaration that the deed of discharge dated 19/6/86 and drawn up by Mrs. Eunice E. Aguocha, the legally appointed trustee and executrix of the said Will, sharing and distributing the properties of late Mr. Victor Ihueze Aguocha to the beneficiaries in accordance with the provisions of the said Will is effective and that same took effect on the 19th day of June, 1986.

2. A declaration that the ownership of the developed piece of land at Plot G.17 Argungu Road, Kaduna, vests in the plaintiff as stated in the said deed of discharge.
3. An injunction restraining the defendant by himself, his agents/servants or privies, whomsoever and howsoever from laying claim to ownership of the said plot G.17 Argungu Road, Kaduna.
4. Rendering an account to the plaintiff by the defendant in respect of the rents he has and is still collecting in respect of the premises as per his rates, that is, N25.00 per room per month and N70.00 per shop per month from 19/6/86, until the determination of this suit.”

The same reliefs were repeated on the statement of claim. The second plaintiff died in December, 1990 and was consequently struck off the suit.

The appellant herein, without securing amendment of the plaintiff’s claim, sought and obtained joinder as second defendant by an order of court made on 2nd April, 1996. The second defendant on being joined to the suit filed his own counter claim against the plaintiff along with his own statement of defence. In the counter-claim, the second defendant claimed as follows;

“Where upon the counter claimant counter claims against the plaintiff and 1st defendant as follows-

(a) A declaration that the distribution of the estate of late Mr. Victor Aguocha effected vide agreement of 7/5/80 is valid and subsisting.

(b) A declaration that the purported deed of discharge made by Mrs. Eunice Aguocha dated 19/6/86 is ultra vires, null and void and of no effect whatsoever.

(c) A declaration that there being no further subdivision of the properties shared to his mother’s kitchen (sic), the ownership of the property situated at G.17 Argungu Road, Kaduna, vest in him in trust for him and the 1st defendant as he is the head of the family/kitchen pending further subdivision between him and the 1st defendant.

(d) An order directing the 1st defendant to render a satisfactory account of all the rents he has been collecting on the property G.17 Argungu Road to him.

(e) An order of perpetual injunction restraining the plaintiff, his servants, agents, privies, successors in title whomsoever claiming through him from laying any claim to the ownership of the property situated at G.17 Argungu Road, Kaduna.

(f) An order of perpetual injunction restraining the 1st defendant, his servants, agents, privies, successors in title whomsoever claiming through him from laying claim to the sole ownership of the property at G. 17 Argungu Road, Kaduna.”

The learned trial Judge concluded his judgment after rejecting the second defendant’s counter-claim, as follows-