Augustus A. Ndukaba V. Chief Silas M. Kolomo (2005)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, JSC

This appeal is another reminder of the old abandoned property conundrum from Rivers State. Augustus A. Ndukauba, now deceased commenced an action in 1988 against the respondents in this appeal claiming for:

(i) A declaration that the plaintiff is the person entitled to the control, management and enjoyment of the property known as Plot 138, Gborokiri (Borokiri) Layout (8 Etche Street) Port-Harcourt until the determination of the building lease in respect of the said plot.

(ii) A perpetual injunction restraining the defendants, their servants and/or agents from interfering with plaintiffs control, management and enjoyment of the said plot until the determination of the lease of the property.

In the course of proceedings before the Port-Harcourt High Court of Rivers State, the plaintiff Augustus A. Ndukauba died and his son, the present appellant was substituted for him. The parties later filed, and exchanged pleadings after which the case proceeded to hearing before Tabai J. (as he then was).

At the conclusion of hearing, the trial court in its judgment on 21/6/93 dismissed the appellant’s suit on the ground that “he has not shown any interest or locus standi to sue.”

Dissatisfied, the appellant brought an appeal before the Court of Appeal, Port-Harcourt (Coram: Ogebe, Pats-Acholonu and Ikongbeh JJ.CA). The said court in a unanimous judgment affirmed the judgment of the trial court and dismissed the appeal. The appellant has brought a further appeal before this court on five grounds of appeal. The issues distilled for determination in this appeal from the five grounds of appeal are these:

“(I). Whether the procedure whereby a substantial part of the defence up to judgment on the merits in the case was conducted in the absence of the plaintiff/appellant or counsel on his behalf, infringed the Rules of fair hearing.

(II) Whether the power of attorney (Exhibit B) in this case is a document that requires the consent of the Governor in a transaction affecting land.

(III) Whether the power created under the irrevocable power of attorney (Exhibit B) executed in favour of appellant’s late father survived the plaintiffs late father for the benefit of the plaintiff/appellant by inheritance.

(IV) Was the Court of Appeal right in upholding the judgment of the trial court ordering a dismissal of the plaintiff/appellant’s case instead of striking it out.

The 1st respondent filed a brief but the 2nd respondent did not. In the 1st respondent’s brief three issues were formulated as arising for determination in the appeal. Because the decision in this appeal turns only on the procedural point agitated in appellant’s first issue, it suffices here for me to observe that the 1st respondent’s first issue for determination is similar in substance to the appellant’s first issue.

The facts relevant to the solitary issue to be considered are these: The appellant, who as I observed earlier was the plaintiff before the trial court testified in support of his case as P.W.1 and was cross-examined by each of the defence counsel for 1st and 2nd respondents. The appellant after his testimony closed his case, which was then adjourned to 16/12/91. On the next date the 1st respondent testified and was cross-examined by appellant’s counsel. Between the 2nd March, 1992 and 15th March 1993, the case suffered about eight adjournments. When the case next came up on 22/4/92, the minutes of proceedings for that day read:

“Plaintiff absent