Chief Dominic Onuorah Ifezue V. Livinus Mbadugha & Anor (1984)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, J.S.C.

The outcome of this appeal hinges on the interpretation of section 258(1) of the 1979 Constitution. Although the grounds of appeal encompass other issues of law and facts which were argued before the Federal Court of Appeal, the interpretation of section 258(1) becomes the dominant issue in the appeal because should the appellant’s arguments on it be accepted, no useful purpose (other than fanciful academic peregrinations) would be served by going through the facts and issues of law arising therefore.

Before, however, embarking upon this main issue, it is perhaps worth the while to set out in a brief outline the facts of the case between the parties bringing about this litigation.

There is a house situate in Block 44, plot 18 at Onitsha commonly known as No. 12 Anyaegbunam Street, Fegge, Onitsha. The plot of land on which this house was built was the subject of a grant to the plaintiff/ appellant from government for a period of 40 years commencing from 1st January 1961. It was the appellant who erected the building on the plot of land. It contains ten rooms, four of which he occupied himself and the rest he let out to rent-paying tenants. The army took over the occupation of the house paying rents to the plaintiff. In 1973 the plaintiff gave a power of attorney (exhibit 5) to one J.U. Okeke, by reason of the fact, as stated by him, that he was travelling overseas, for Mr. Okeke to administer, manage, superintend the management, of the building which power to sub-let, mortgage, assign to himself or to any other person or persons the plot and the building. The power of attorney was stated to be given in consideration of an agreement for sale, in order to facilitate the carrying out of the contract which was said to be irrevocable. The plaintiff handed to the said Mr. Okeke the original dead of lease.

Later on 5th October 1974 a receipt (exhibit 4) was issued by Mr. Okeke to the plaintiff acknowledging payment by the plaintiff to Mr. Okeke of a sum of N8,500.00 stated there to be “consideration in respect of the revocation of the power of attorney granted to him in respect of No. 12 Anyaegbunam Street, Fegge, Onitsha. ”

On the same day, the said J. U. Okeke in turn gave to the plaintiff/ appellant an irrevocable power of attorney, clause 5 of which stated that

“this power of attorney is necessary and given because an agreement for the sale of the plot as expressed in paragraph 11 of the power of attorney dated the 4th day of August 1973 fell through and was abandoned by mutual consent by myself and Chief Ifezue.”

This instrument was not registered until 7th June 1977.

The appellant did not assign the plot to J.U. Okeke. Equally, J.U. Okeke did not at any time exercise the power granted to him under the original power of attorney which the appellant gave to him, to assign the property to himself or to any other person. But, he did exercise the power of mortgage contained in the instrument by mortgaging (exhibit 10) the property to a bank- a mortgage in which he described the property to be his own-as security for a loan. While the mortgage was still subsisting, Okeke became a judgment debtor to the form of C.F.A.O. in Suite 0/174/ 73. He applied to court by motion for instalment payment of the judgment debt in the said suit 0/174/73, and in his affidavit in support named the house as his property. His creditors later applied for and obtained the leave of court to levy execution against the house as property of J. U. Okeke. The court gave leave for the property to be attached and a subsequent order of court gave leave for the property to be sold.

In April 1975 the property was sold by order of court by the Deputy Sheriff, Onitsha, to the 1st defendant (Livinus Mbadugha) for a sum of N8,360.00. Thereafter, at the request of the Registrar of the court, Mbadugha paid an additional sum of N444.73 claimed by the bank to write off their mortgage transaction with Okeke on the property. The Registrar then issued a certificate of purchase (exhibit 7) dated 3rd May 1975 to Mr. Mbadugha. The Ministry of Works and Housing approved in principle the transfer of the property to Mr. Mbadugha (exhibit 8).

The transfer in fact had not actually taken place. It is to be noted that the appellant took no part in the enforcement proceedings in the suit 0/174/73 nor did he interplead when the property was attached. There was also no direct evidence that he knew of the case, 0/174/73, or of the attachment of the property until the 2nd day of May 1977 when he filed in court an affidavit (exhibit 6) in which he stated that he had just learnt of the proceedings in 0/174/73 and that the attached and sold property belonged to him and not to Mr. J. U. Okeke. On 2nd May 1977 he filed this suit in the Onitsha High Court claiming:

(i) That he was the lessee of the Government of Anambra State of the property in question;

(ii) An order setting aside or declaring void the purported sale of the property by the Deputy Sheriff, Onitsha, to Livinus Mbadugha;

(iii) An order of injunction restraining Mbadugha and the Deputy Sheriff from interfering with the property, and