Benson Okechukwu Nnoli & Anor. V. Emmanuel Chuka Nnoli & Anor. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Abia state High Court; Coram L. Abai, J sitting at Aba Judicial Division delivered on the 24th day of June, 2011.

The case of the Respondents who were the claimants at the Lower court is that, the 2nd Respondent is the widow of Late Felix Nwafor Nnoli of Mbanagu, Otolo, Newi in Nnewi North Local Government Area of Anambra State whom he married in 1950 under a Statutory Marriage. That the 2nd Respondent was the only wife of the said Felix Nnoli during his life time and the marriage was blessed with eight children consisting of six males and two Females.

The 1st Claimant/Respondent is the first child of the marriage while the 1st Defendant/Appellant is the fourth in the hierarchy of the male children. It is also the case of the Respondents that after the marriage of the 2nd Respondent and her husband (Mr Felix Nwafor Nnoli), the couple were able to build the property in dispute known as No. 18 Azikiwe Road, Aba in 1966, wherein they co-habited till the demise of the said Felix Nwafor Nnoli on the 6th day of January, 1999.

That after the death of her husband, the 2nd Claimant/Respondent continued to reside in the front upstairs space of the said building comprising of two bedrooms and a family living or sitting room as well as a private kitchen and a bath room.

The Claimants/Respondents further contended that in October, 2005 the 1st Defendant/Appellant was deported from Canada and the United States of America (U.S.A) where he had sojourned for a period of 25 years, whereof the 2nd Respondent accommodated him by allowing him to live in her late husband’s room temporarily as it was not her intention to make such accommodation permanent and that she made it so known to the 1st Defendant/Appellant. That in the process, a one room apartment was made available to the said Appellant in the said No. 18 Azikiwe Road, Aba, but he chose not to move in, and preferred to remain in the two bedrooms apartment occupied by the 2nd Respondent. The 1st Appellant and the 2nd Respondent then continued to live in the said two bedrooms apartment till the year 2006, when the 2nd Respondent travelled to the United States of America for medical treatment on the invitation of the 1st Respondent leaving the 1st Appellant in the said property. That while the 2nd Respondent was in the United States of America (U.S.A) the 1st Appellant telephoned her seeking for financial assistance to enable him marry his then girl friend (2nd Defendant/Appellant), and that with the financial assistance of the 1st Respondent, the 1st Appellant was able to actualize the marriage.

It is also the case of the Claimants/Respondents that early in the year, 2008, the 1st Appellant began a gradual process of dispossessing the 2nd Respondent by selling her personal effects and one of the beds in her room. That the 2nd Respondent returned to Nigeria earlier in 2008, but the 1st Appellant continued with his attitude of disrespect, malice and wickedness towards her when he removed the entire furniture in the living room and dumped same at the back of the building. After that, he systematically removed all the personal effects of the 2nd Respondent from the two bedroom apartment in dispute and that when confronted, the 1st Appellant told her that he is now the owner of the said two bedroom apartment, and proceeded to ask her to move out of the apartment. That when the 2nd Respondent returned to the U.S.A in 2009 for medical check-up, the 1st Appellant then finally removed her trunk box in which she keeps her clothes, jewelries and other important family documents and dumped them under the staircase of the building the subject of this suit. Consequently, the Respondents instructed their Solicitor to direct the Appellants to vacate the said apartment, but the Appellants wrote through their Solicitor stating that they had no intention of vacating the said apartment. The Respondents who contended that all they want is the place for the 2nd Respondent who was then eighty (80) years of age, to lay her weary body in peace therefore claimed before the Lower Court as follows:

“(a) A declaration that the 2nd Claimant being the wife and widow of late Felix Nwafor Nnoli who died intestate on the 6th day of February 1999 is entitled to remain in occupation of the living quarters or apartment at Felix Nwafor Nnoli family property otherwise known as No. 18 Azikiwe Road, Aba which she shared with her late husband until his demise to the exclusion of other members of the said family.

(b) A declaration that the 2nd Claimant is entitled to exclusive possession of the said living apartment without interruption and/or interference from the Defendants, their agents, servants or any other member of late Felix Nwafor Nnoli family.

(c) An order of Court compelling the Defendants to VACATE FORTHWITH the said living apartment comprising of a living room, two bedrooms, a private kitchen and bath room belonging to the 2nd Claimant which the Defendants presently occupy without the consent of the 2nd Claimant.

(d) An order of the Honourable Court directing the Defendants to return to the 2nd Claimant all her personal properties which they removed from the said living room apartment of the 2nd Claimant at No. 18 Azikiwe Road, Aba.

(e) An order of injunction restraining the Defendants, their servants or agents from intimidating, harassing or threatening the life of the 2nd Claimants in any manner howsoever.”

The case of the Appellants, who were Defendants at the Court below is that the property in dispute was single handedly built by the late Felix Nwafor Nnoli, and that the 2nd Respondent, though a wife to the said Mr Nnoli, did not contribute anything financially toward the building of the said property. The Appellants then contended that, the 2nd Claimant/Respondent never lived in the said apartment with her husband, the late Felix Nwafor Nnoli, but had her private room at the back of the building and could only go into the apartment in dispute on the invitation of her husband. That after the death of Mr. Nnoli, the two bedroom apartment was locked – up and was only opened by the 1st Appellant upon his return from the United States of America, who cleaned and refurbished same and occupied it without any disturbance or interference from the 2nd Respondent or any other person. It is also the Defendants/Appellants’ case that, at the time the action was instituted, the Respondents had not applied for nor obtained any letters of administration so as to enable them administer the estate of the late Felix Nwafor Nnoli, but had been intermeddling with the said estate.

It is also the case of the Appellants that, the 2nd Respondent kept her personal effects in her private room when she travelled to the U.S.A and that when she returned to Nigeria in 2008, her properties were still in her said private room. That it was when she went back to the U.S.A in 2009 that she evacuated some of her properties to the house of her daughter, Mrs Joy Anazodo who lives near St. Philip’s Anglican Church, Aba. That she (2nd Appellant) handed over two locked-up trunk boxes to the 1st Appellant through the 2nd Appellant for safe keeping, which he kept under his bed, while she left with the keys. The Appellants denied selling any of the 2nd Respondent’s properties and contended that it was the 2nd Respondent who kept her iron bed and furniture under the staircase, and which bed and furniture were later refurbished by her and given to one Mrs Ulorka Nnoli, the wife of Mr. Dennis Nnoli. The 1st Appellant then denied ever tampering with any property belonging to the 2nd Respondent. The Appellants then contended that the Respondents had no competence to ask them to vacate the said apartment.