Chief Okey Mbanaso V. Davidsmith Offor & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the judgment of Obisike Oji J. delivered on 29/11/2007 in the Umuahia Judicial Division of the High Court of Abia State.

The Appellant was the 3rd defendant while the 1st Respondent was the plaintiff before the lower court. The 1st Respondent, as plaintiff took out a Writ of Summons against 5 (five defendants) including the Appellant as 3rd defendant and the Registrar of Deeds, Land Registry (Umuahia) as 5th defendant. At a later stage, by order of court, Chuks Offor and Okechukwu Osisiogu were joined as the 6th and 7th defendants respectively in the suit. In the course of trial, it became known that the 2nd defendant is one and the same person as the 6th defendant.

The claims of the 1st Respondent as plaintiff against the defendants at the lower court including the Appellant as 3rd defendant were as follows:

(a) N5M (Five Million Naira) special and general damages from the defendants jointly and severally for trespass into plaintiff’s land known as and called Plot No. UM/IND/12 situate at WORLD BANK HOUSING ESTATE UMUAHIA covered by statutory Certificate of Occupancy registered as No. 72 at page 72 in volume 18 of the Land Registry at Umuahia.

(b) An order canceling any document of transfer of title made between the 2nd defendant and the 1st defendant or any other persons touching and concerning the property described above without the consent and authority of the plaintiff.

(c) An order of perpetual injunction restraining the 5th defendant by herself through her servants and or agents or any officer in her department from registering any TITLE DEED by any name so called made in favour of the 1st defendant or any other person touching and or concerning the said land described above with the consent of the Plaintiff.

(d) An order of perpetual injunction restraining the 1st to 4th defendants jointly and severally by themselves through their servants and or agents from further entry or trespass into the said land shown as Plot No. UM/IND/12 and registered as No. 72 at page 72 in volume 18 of the Land Registry Office at Umuahia.

The 1st Respondent as plaintiff filed a statement of claim dated and filed on 25/5/2004. The Appellant as 3rd defendant in the suit filed a statement of defence dated 7/6/2004 on 14/6/2004. And, Mrs. Elizabeth Nwakpuda, the 4th Respondent on record filed a statement of defence dated 12/7/2004 on 13/7/2004. Pursuant to an order of court made on 26th May 2006, the total pecuniary claim of the plaintiff was reduced from 5 million to N4, 892, 500.00 (Four Million, Eight Hundred and Ninety-Two Thousand, Five Hundred Naira only) and paragraph 19 (d) (e) of the statement of claim was amended to read N12, 000.00 instead of N120, 000.00

The facts of the case revolve around the title to a real property known as Plot No. UM/IND/12 situate at World Bank Housing Estate, Umuahia, Abia State. By certificate of Occupancy dated April 30, 1993 (Exhibit “B”) the Government of Abia State of Nigeria granted the right of occupancy of the property the subject matter of the suit to Peter Chukwuka Nnamdi for a period of 99 (ninety-nine) years commencing on January 1, 1990.

On July 27, 1998, in consideration of the sum of N500, 000.00 paid to him by the 1st Respondent, the said Peter Chukwuka Nnamdi donated an irrevocable Power of Attorney (Exhibit “C”) to the 1st Respondent regarding the unexpired residue of his title in respect of the property and put the 1st Respondent in possession thereof.

The 1st respondent handed over the original title document of the property delivered to him by Peter Chukwuka Nnamdi to the 4th Respondent, Mrs Elizabeth Nwakpuda, his elder sister, for safe keeping and proceeded to construct a building comprising two number three bedroom flat apartments thereon that was at roofing stage as at October 2003.

Sometime in October, 2003 without any authority of the 1st Respondent the Appellant, a legal practitioner, entered the property and began to build thereon. Upon being accosted by agents of the 1st Respondent (who resides in the United States of America) the Appellant claimed that his client, whose name he refused to disclose, had bought the property from the 2nd (16th) and 7th Respondents based on an email Power of Attorney (Exhibit “F”).

According to the Appellant, the 2nd (16th) Respondent had executed a Power of Attorney in favour of his unnamed client, whose name is not on the Power of Attorney as Donee and he (the Appellant had delivered the original title documents of the property that were handed over to him by the 2nd (16th) Respondent (the first son of the 4th Respondent) to a relation of his client whose name he did not disclose.