Azu Kalu Onyeani & Anor V. Jonathan C. Avaja (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment)

This is an appeal against judgment of S. O. E. Nwanosike. J., delivered on 19/04/2007 in the High Court of Abia State sitting at Umuahia.

The appellants as plaintiff’s before the lower court filed a Writ of Summons on 4/5/92 against the defendant which was followed up by a Statement of Claim filed on 13/7/92 wherein the appellants as plaintiffs claimed against the defendant as follows:

(a) A declaration of this Honourable Court that the plaintiffs are entitled to the right of occupancy and possession of the said No. 19, Abiriba Street, Umuahia, also known as plot 6, in Block 1, Umuahia within the jurisdiction of this Honourable Court.

(b) An account by the defendant to the plaintiffs all the rents he has collected from the premises since 1970 until date

(c) An order of court restraining the defendant from further collection of rents from or interfering and/or intermeddling with the said No. 19, Abiriba Street, Umuahia.

(d) An order of court nullifying the letters of Administration dated 6th April, 1982 fraudulently obtained by the defendant (a native of Olokoro Umuahia) who is in no way related to the deceased (a native of Abiriba) by presentation of unauthentic documents.

The relevant pleadings before the lower court are:

1. Appellant’s statement of claim dated 6/7/92 and filed on 13/7/92.
2. Respondent’s Amended Statement of Defence dated 23/2/2004 and filed on 25/2/2004.

The appellant’s case at the trial court was that the property known as and called No. 19 Abiriba Street (Plot 6 Block 1) Umuahia, Abia State (the property in dispute) was originally the property of one late Jacob Okpani. Upon his death, his father, one Ifendu Okpani obtained Letters of Administration in respect of his properties including the property in dispute. At the onset of the Nigeria Civil War in 1967 the said Ifendu Okpani donated a Power of Attorney to the respondent, a native of Umuahia, to manage the property for him as a caretaker, while Ifendu Okpani returned to his native hometown of Abiriba. On Ifendu Okpani’s death, the appellants (who are his brother and wife respectively) obtained Letters of Administration over his estate including the property in dispute.

Appellants said that as a result of illness and old age they returned to their native hometown of Abiriba and claimed that the respondent took advantage of this development and started collecting rents, claiming ownership of the property.

The respondent on the other hand said that the Power of Attorney executed in his favour by Ifendu was not meant to appoint him caretaker but one that vested him with ownership of the property absolutely. He agreed that Jacob was the original allottee of the property, and that Ifendu, his stepfather was granted Letters of Administration over the property of Jacob. But, that Ifendu sold the property in dispute to one Mr. G. C. Ugwunali who, in turn sold to him on March 21, 1963 for a sum of 600 (six hundred pounds). Mr. Ugwunali introduced him to Ifendu who agreed that he sold the property in dispute to Mr. Ugwunali. After the introduction, Ifendu demanded and received from him (Respondent) a further sum of 80 (eighty pounds) as a consideration to ratify the sale transaction between him and Mr. Ugwunali. Ifendu, after receiving the money from him, executed the Power of Attorney to enable him take over the property not as a caretaker but owner. Respondent said, he paid the relevant statutory rates to government from the year 1964, through Ifendu because he (Respondent) was then resident in Kaduna as a worker and the change of ownership of the title deeds of the property had not been effected. At the trial, PW1 gave evidence for the appellants and the respondent alone also gave evidence in defence. Each of the parties tendered sundry documents in respect of their respective cases.

In his judgment, the learned trial Judge found for the respondent. At page 164 of the printed record he had this to say:

“Now from the totality of the evidence I find that Ifendu as the administrator of the estate of Jacob, sold the property in dispute to Mr. Ugwunali who in turn sold to the defendant. I also find that after the sale to defendant, Mr. Ugwunali introduced the defendant to Ifendu who demanded and received the sum of 80 (eighty pounds) from demand in rectification of the sale. I prefer the evidence of the defendant to that of the plaintiffs. I reject the evidence of the plaintiffs that the defendant was appointed a caretaker over the property in dispute. I accept the evidence of the defendant that the property was sold to him by Mr. Ugwunali for a valuable consideration and that the sale was verified and confined (sic) confirmed for value by Mr. Ifendu Okpani, the administrator of the estate of Jacob Okpani, the original allottee. I hereby dismiss the plaintiff’s suit against the defendant and award N5,000.00 (Five Thousand Naira) costs to the defendant.”

Dissatisfied with this judgment, the appellants filed a Notice of Appeal containing four (4) grounds of appeal before this court on 31st May, 2007.