Madam Enid Sankey V. Mr. Lucky Okiemute Onayifeke (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the leading Judgment)

This appeal is against the judgment of the Delta State High Court of Justice, holden at Effurun, which was delivered on 16th May, 2001. The respondent had claimed at paragraph 20 of his Further amended statement of claim, the following reliefs:-

“(a) A declaration that the Plaintiff is the person entitled to the ownership and possession of the landed property lying being and situate at Adiwhe Bush near Warri/Sapele Road Effurun now known and called No. 17B Okoloba Street, Effurun, Delta State, Nigeria a place within the jurisdiction of this Honourable Court and more particularly described in a Survey Plan No. MWC/992D/78 and which said property was demised to the Plaintiff by the Defendant by virtue of a Deed of Assignment Or

(b) Or in the alternative, plaintiff seeks an order of the Honourable court compelling the Defendant to specially perform the terms of the Deed of Assignment entered into by her and the Plaintiff.

(c) An order of perpetual injunction restraining the Defendant by herself, agents, servants or privies from interfering with the Plaintiff’s right of ownership and possession of the demised property described in (a) above OR

(d) In the alternative, Plaintiff claims the sum of N3,850,000.00 (Three Million, Eight Hundred and Fifty Thousand Naira) as the current value of the purchasing Power of the sum of N35,000.00 paid to the Defendant in 1991 and a further sum of N60,000.00 (Sixty Thousand Naira) per year from October, 1992 till date of judgment as rent at the rate of N5,000.00 (Five Thousand Naira) per month for the use of the demised property.”

Pleadings were duly filed, amended and exchanged between the parties. Each of the parties gave evidence and called witnesses at the trial. Learned counsel for the respective parties addressed the court below and at the end, the learned trial judge, entered judgment for the respondent.

The appellant, on 25th May, 2001; filed her notice of appeal anchored on the omnibus ground only, against the said judgment. The appellant, with leave of this court, filed eight (8) additional grounds of appeal. Thereafter, the appellant again sought the leave of this court which was granted and she filed three (3) further additional grounds of appeal.

In order to prosecute the appeal, the appellant, with leave of this court, granted on 15th February, 2010; filed her amended brief of argument dated 26th February, 2010 on 4th March, 2010. The said brief of argument was settled by A. B. Odiete, Esq., of counsel and in it, there is an indication that additional grounds 3 and 5 are abandoned, hence the appeal was argued on the original ground with the additional further grounds 2, 4, 6, 7, 8, 9, 10, 11 and 12.

The appeal was argued on 14th October, 2013.

In the appellant’s amended brief of argument aforementioned, three issues were distilled from the extant grounds of appeal for the determination of the appeal, to wit:

“(1) Whether the Respondent has by evidence proved his case that made the Learned trial Judge give ownership and possession of the premises in dispute to the Respondent?

(2) Was the Learned trial Jude right in law to have ordered the Appellant to pay to the Respondent the sum of N3,850,000.00 which the Learned trial Judge took to be the value of the house or the Naira value when he gave judgment and also the sum of N60,000.00 per year for the use of the house by the Appellant?

(3) Was the Learned trial Judge right to have ordered the Appellant to return the Respondent to the physical possession of the property?”