Kenneth Ukangwu V. Mr. Quintin O. Pitt (2008)

LawGlobal-Hub Lead Judgment Report

OGUNBIYI, J.C.A.

This is an appeal against the decision of Lagos State High Court delivered on the 17th December, 1998 wherein the respondent as the plaintiff at the lower court claimed against the appellant/defendant as follows:

“(a) A declaration that the House at 3rd Avenue P Close, House 7, Festac Town is the property of the plaintiff having been held on trust for him by his sister Late Mrs. Emilia Ayodele Abowaba (Nee Pitt); and

(b) Possession of the said property at 3rd Avenue P Close House 7 Festac Town.”

The plaintiff/respondent’s case was that sometime in 1974 he bought two forms for N50.00 each, one for his name and one in the name of his sister Mrs. Emilia Abowaba to ballot for the Festac Houses.

In December, 1976 when the result of the balloting was out, the one he bought with his sister’s name won a house at 3rd Avenue, P Close, House 7. He informed the sister who congratulated him and he went with the sister and collected the keys and moved into the house in 1977 with his family. He later invited his sister who was living alone at Oshodi and without issues or anybody to join him in the house. He lived there until 1979 when he left the house back to Surulere and left his sister behind to hold in trust for him. All the receipts of payment as well as letters from the Federal Housing Authority were in the name of Mrs. Abowaba of No. 15, Eninobinu Street, Oshodi, Lagos State. There was no Deed of Trust between the plaintiff and his sister who died in 1985. (See pages 80-99).

The appellant’s case is that he came in to substitute for his father Mr. Ezekiel Ukangwu who died during the pendency of the suit. Mr. Emilia Ukangwu bought the lottery form through DW1 in her former name because she and her husband Mr. Ukangwu had earlier bought one form in their name. When the result came out the one in her former name Mrs. Emilia Abowaba won. She, her husband and the appellant who was his son and other children moved into the house in 1977. The respondent never lived in the property nor did he challenge Mrs. Emilia Ukangwu one day that the house was his when the woman was alive. Both former Mrs. Abowaba and Mr. Ezekiel Ukangwu were statutorily married in October 26, 1974 and that since then been living together as husband and wife to the knowledge of everyone including the plaintiff (respondent). (See pages 100-109).

The claim was initially commenced before Hon. Justice Martins now retired). Default judgment was entered against the defendant/appellant on the transfer of the case to the lower court, but same was however, set aside on the confirmation that the defendant then died prior to the delivery of the judgment and had offered no evidence.

Vide an application by the son of the deceased, an order was granted and substituting the said son as defendant, now appellant, in place of his father.

Evidence was led by both parties, and consequent to which the learned trial Judge after due determination and consideration of the case found in favour of the plaintiff/respondent wherein he held at page 142 of the record as follows:

“I consequently grant a declaration that the House at 3rd Avenue P Close, House 7, Festac Town is the property of the plaintiff having been held in trust for him by his sister, late Mrs. Emilia Ayodele Abowaba (Nee Pitt).

I also grant the plaintiff possession of the said property at 3rd Avenue P Close, House 7 Festac Town.”

Being dissatisfied with the said decision, the appellant has now appealed to this court wherein he filed his initial notice of appeal on the 21st December, 1998. Vide the order of this court sought and obtained on the 3rd July, 2007, the appellant amended his notice of appeal which was deemed filed and served on the said date: seven grounds of appeal were contained therein.

In accordance with the rules of this court, briefs were filed and exchanged between parties.