Charles Chuka Osadebe V. Arinze Osadebe (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Anambra State, Onitsha Judicial Division, Holden at Onitsha and delivered on the 14th day of December 2006 by Hon. Justice C.E.K. Anigbogu in Suit No.0/745/2000 (CHARLES CHUKA OSADEBE VS MICHAEL OKECHUKWU ADIMORAH.

The Appellant in this appeal had as plaintiff filed an action in the High Court of Anambra State, Onitsha judicial Division hereinafter referred to as (the lower court) wherein he claimed against the defendant (now Respondent) as per his statement of claim dated 9-2-2001 as follows:-

(a) Possession of the two rooms and premises at No. 53 Old Market Road, Onitsha.

(b) Mesne profit at the rate of N1,600 per month from the 1st day of April 2000 till possession is given up.

The defendant, (now Respondent) in his Statement of Defence dated 11-6-2001 denied the claim of the appellant and further counter claimed against him as follows:-

(a) A Declaration that the plaintiff is a total stranger to the property known as No. 53 Old Market road, Onitsha and therefore lacks the locus standi to bring this action.

(b) A Declaration that the defendant is entitled to the exclusive possession and enjoyment of the two rooms, a common kitchen and toilet and bathroom at 53 Old Market Road, Onitsha.

(c) Perpetual Injunction restraining the plaintiff from parading himself as a grandson of late Stephen Nnabuenyi Nwadiogbu Osadebe and son of late Eleazer Osadebe or a member of Osadebe family of Umuaroli village Onitsha and from doing any act affecting the possession and enjoyment of defendants portion at 53 Old Market Road, Onitsha.

(d) N100,000 general damages.

A brief fact of the case as set up by the appellant is that one Nnabuenyi Stephen Nwadiogbu Osadebe was the original owner of No. 53 Old Market Road, Onitsha. He married two wives, from whom he had 7 children, 6 females and one male called Eleazer. Though married, most of his daughters and their children including the respondent still stayed with Nnabuenyi Osadebe at the said 53 Old Market Road, Onitsha.

At the death of Nnabuenyi Osadebe, his only son Eleazer inherited the property at 53 Old Market Road, Onitsha in accordance with Onitsha Native Law and Custom. He subsequently executed two leases in 1963 and 1966 in favour of two different Lessors with respect to two portions of the property. Eleazer died in 1967 and the Appellant as the only son inherited the No. 53 Old Market Road, Onitsha under native law and custom. In 1970 he executed a supplemental lease for one of the leases and being a minor at 13 years of age then, the supplemental lease was made in conjunction with the respondent who is the son of late Nnabuenyi Osadebe’s daughter also deceased. The Respondent whose father is said to hail from Asaba in Delta State occasionally resides in a two rooms at No. 53 Old Market road as did his cousins but now claims title to the said two rooms in perpetuity on the ground that the late Nnabuenyi Osadebe by a nuncupative will granted him ownership of the two rooms. That engendered this Suit.

Pleadings were subsequently ordered, filed and exchanged and hearing of the matter commenced on 27-5-2003 at the conclusion of which the learned trial judge in his judgment delivered on 14-12-2006 held inter alia as follows:-

“In conclusion, the claim for recovery of premises fails in its entirety as neither the plaintiff nor the defendant can eject each other from the premises. The suit is dismissed accordingly”.