Agnes Emecheta V. A.u. Ogueri & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A. 

The appellant as plaintiff took out this action against the defendants (now respondents) jointly and severally, at the Aba High Court. The claims of the plaintiff as contained in paragraph 18 of the Statement of Claim were as follows:-

“(a) A declaration that the purported sale of the property registered as 84/84/626 Enugu (now Owerri) by the 2nd defendant to the 1st defendant by public auction is null and void.

(b) An injunction restraining the 1st defendant and/or his agents from ejecting the plaintiff from her residence at No. 26 Okigwe Road, Aba part of the property registered as 84/84/626.”

Pleadings were ordered, filed and duly exchanged by the parties to the suit. At the hearing, the plaintiff who gave evidence, tendered some documents and called one witness. The defendants, also, gave evidence at the hearing and tendered some documents. After hearing the parties and their counsel, Jonah Johnson J., in a reserved judgment delivered on 22nd October, 1991 dismissed the suit with costs. Dissatisfied with the judgment, the Plaintiff, now Appellant, has appealed to this Court. The Further amended Notice of Appeal contains eight grounds. They read without their particulars as follows:-

“GROUND ONE ERROR IN LAW

The learned trial Judge erred in law when he held that the Auctioneer’s Notice as prescribed by Auctioneer’s Law was neither necessary nor a condition precedent to the sale of a Mortgaged Property and thus held that the sale to the 1st defendant of property registered as 84/84/626 Enugu (now Owerri) by the 2nd defendant without adequate notice by the Auctioneer was a valid sale.

GROUND TWO ERROR IN LAW

The learned trial Judge erred in law when he concluded that Exhibit ‘C’ was of no legal significance and thus could not confer locus standi on the plaintiff when the legal significance or authenticity of Exhibit “C’ was never in issue before the court as per the pleadings filed by the parties.

GROUND THREE MISDIRECTION

The learned trial judge misdirected himself as to the facts of this case when he held that he was satisfied following evidence before him that the Plaintiff/Appellant withdrew from the 2nd defendant the sum of N71,559.00 being balance of the proceeds of sale of the mortgaged property, when no such evidence was led by any of the parties before the court.

GROUND FOUR ERROR IN LAW

The learned trial Judge erred in law when he held that the property Plot 232 Fuel Plantation Layout G.R.A. Aba i.e. property No. 84/84/626 had not been partitioned and thus was still intact and in existence in its original form.

GROUND FIVE ERROR IN LAW