MR. Benjamin Chukwudi Nweke & Anor V. Gabriel Nweke (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On 15-11-1995 the respondent herein, as plaintiff filed a claim and caused the issuance of a writ of summons in the then Anambra (now Enugu) State High Court in the Enugu Judicial division at Enugu commencing suit No. E/639/95 against the appellants herein, as defendants. Both sides filed and exchanged pleadings, namely, amended statement of claim and amended statement of defence. In the amended statement of claim, the plaintiff claimed for:

(a) A declaration that his sale of the property situate at and known as Plot 6 Block 12 Achara Layout, Enugu and registered as No. 29 at page in volume 944 of the Lands Registry Enugu to one Michael Ngene by virtue of a loan agreement dated the 14th day of September, 1992, and entered into between him and the defendant is valid, effective and binding in law and equity.

(b) Perpetual injunction restraining the defendant, his agents, servants, privies or any person(s) whom he represented in the transaction respecting the property situate at and known as Plot 6 Block 23 Achara Layout, Enugu and registered as No. 29 at page 29 in volume 944 of the Lands Registry Enugu from having anything whatsoever to do with the property without the consent of Michael Ngene as true and beneficial owner.

On 23-9-99, the appellants herein, as plaintiffs, equally filed a claim and caused the issuance of a writ of summons in the above mentioned court commencing suit No E/446/99 against the respondent herein as defendant. Both sides filed and exchanged pleadings namely, statement of claim and statement of defence. In the statement of claim, the plaintiff in suit No E/446/99 claimed for:

(a) “A declaration that his sale of the property situate at and known as Plot 6 Block 12 Achara Layout, Enugu and registered as No. 29 at page in volume 944 of the Lands Registry, Enugu to one Michael Ngene by virtue of a loan agreement dated the 14th day of September, 1992, and entered into between him and the defendant is valid, effective and binding in law and equity.

(b) Perpetual injunction restraining the defendant, his agents, servants, privies or any person(s) whom he represented in the transaction respecting the property situate at and known as Plot 6 Block 23 Achara Layout, Enugu and registered as No. 29 at page 29 in volume 944 of the Lands Registry Enugu from having anything whatsoever to do with the property without the consent of Michael Ngene as true and beneficial owner.

Both suits were tried and determined together as consolidated suits. However there is nothing in the records of this appeal showing that either party applied for their consolidation and there is no order of consolidation what is in the record is a letter dated 19-2-2000 from learned Counsel to the appellants herein applying to the Honourable Administrative Judge in the Enugu Judicial Division of the State High Court to transfer suit No E/446/99 from High Court No 9 to High Court No 2 of the same State High Court, where suit No E/639/95 which was then part heard was pending so that the two can be dealt with by the same Judge.

This is obviously not an application for consolidation. It is clear from the record that both matters were heard by the same Judge who treated them as consolidated suits. The trial court in its ruling of 3-6-2009 refusing the application by learned Counsel to the appellants herein for adjournment of that day’s sitting in the case, and in its final judgment, referred to the two suits as consolidated suits.

Both sides did not object to this procedure and have not questioned it even in this appeal. It is obvious all parties consented to this procedure and dealt with the suits as consolidated.

Both sides filed list of witnesses, witness statements on oath, list of documents and documents to be used at the trial. The respondent testified as PW1 and elicited evidence through another witness as PW2. The 2nd appellant testified as DW1 and the 1st appellant testified as DW2.

Upon the conclusion of evidence by both sides and following the addresses of learned counsel on both sides, the trial court rendered judgment on 14-7-2010, granting the reliefs claimed for by the respondent in paragraphs 20(a) and (b) of the amended statement of claim dated 30-9-1997 and dismissed the appellants’ claim in “the suit dated 26th January 2000.”

On 22-7-2010, the appellants commenced this appeal No CA/E/93/2013 by filing a notice of appeal containing 6 grounds of appeal. In the said notice of appeal, the appellants stated that the part of the judgment of the trial court appealed against is “the whole judgment except the aspect wherein the case of the defendant in the suit dated 26th day of January 2000 was dismissed.”

The appellants also stated in the said notice of appeal that the relief sought for from this court is “to set aside the judgment of the trial court in its entirety except the aspect wherein the case of the defendant in the suit dated 26th January 2000 was dismissed, and a further order of the Court of Appeal dismissing suit No. E/639/95.