Chief P. I. A. Jideonwo & Ors. V. Mrs. Eunice Chukwuma (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A.: (Delivering the Leading Judgment)

The property at No. 26 Jarret Street, Cable-Point, Asaba, Delta State, has been subject of litigation in various Courts for a numbers of years. The property originally belonged to the Respondent’s husband, Robert Obiefuna Chukwuma, a native of Asaba, who died intestate in 1967, during the Nigerian Civil war. After the war, his properties were partitioned to his children, and the said property at No. 26 Jarret Street, was given to the Respondent’s children, Henry and Chineze Chukwuma.

In 1977, Henry Chukwuma sold the property to the 1st Appellant. When the Respondent, who was living in the property, refused to give up possession, the 1st Appellant filed an action against both of them in Suit No.A/73/89, before Hon. Justice A. N. E. Gbemudu of the High Court, Asaba. In his Judgment delivered on the 28th of May, 1992, Gbemudu, J. dismissed his claims on the ground that the property had ceased to be family property and was the personal property of Henry and Chineze, thus, the sale made by Henry without Chineze’s consent, was void.

The 1st Appellant then filed an appeal against the Judgment on the 15th of June, 1992, but the appeal was dismissed by this Court for want of prosecution on the 9th of June, 1999. By a Motion dated 16th July, 1999 and filed on 21st July, 1999, the 1st Appellant applied to re-list the appeal, but this Court refused the application in its Ruling delivered on the 24th of November, 1999. By a Motion dated 14th February, 2000 and filed same day, the 1st Appellant applied to the Supreme Court for leave to appeal against the decision of this Court dismissing his appeal for want of prosecution.

The Application, SC/16/2000, was heard and granted by the Supreme Court on the 8th of March, 2000. In addition, the 1st Appellant applied for leave to appeal against the Ruling of this Court dismissing his application to re-list his appeal, but this Application was heard and dismissed by the Supreme Court on the 19th of March, 2001.

During this time, Henry and Chineze had died; the 1st Appellant had taken possession of the property; and the Respondent, who was now in her father’s house, obtained a Court Order from Odita, J., on 13th March, 1997 to have the rents collected from the property paid into Court.

After a series of correspondence between her Solicitor and that of the 1st Appellant failed to have him hand over possession of the property, the Respondent filed an action by Originating Summons at the High Court, Asaba, praying for the determination of the following questions’

1. Whether the plaintiff, a widow of late Robert Obiefuna Chukwuma, a native of Asaba, who died intestate is entitled to a life interest in her late husband’s house at No. 26 Jarret Street, Cable-Point, Asaba, and to occupy same throughout her life time.
2. Whether the Plaintiff who was in possession and physical occupation of the property – before the purported acquisition of the land by the 1st Defendant, which acquisition has been declared illegal, null and void by the Judgment of Gbemudu, J. on 28/5/92 in Suit No. A/73/89 between the 1st Defendant and the Plaintiff herein can be legitimately prevented from resuming possession and occupation of the property by the Defendants.
3. Whether a person in possession of land can be ousted by a person who does not have a better title.
4. Whether the Defendants are entitled to remain in possession of and keep the Plaintiff out of same despite the finding of Court that the 1st Defendant’s acquisition of the land is illegal, null and void.

The Respondent as the Plaintiff therein, also claimed to be entitled to-

1. A Declaration that she is entitled to resume possession and occupation of the buildings and property lying and situate at No. 26 Jarret Street, Cable- Point, Asaba and remain in possession of same without any objection, interference or disturbance by the Defendants.
2. A Declaration that the Defendants’ continued resistance and objection to her resumption of possession and occupation of No. 26 Jarret Street, Cable-Point, Asaba, is illegal, null and void.
3. A Declaration that she is entitled to live on and occupy the property in dispute throughout her life time.
4. An order of Court directing the Defendants to give up possession of No. 26 Jarret Street, Cable-Point, Asaba to her.
5. An order of Perpetual Injunction restraining the Defendants, whether by themselves or through their agents, privies, servants or any person whatsoever from occupying the said No. 26 Jarret Street, Cable-Point, Asaba or exercising, claiming or asserting any form of ownership or possessory rights over same or disturbing or interfering with her quiet enjoyment or possession of same by any means whatsoever.
6. Any other order or such order as the Honourable Court may deem fit to make in the interest of Justice.

The Originating Summons is supported by a 17-paragraph Affidavit deposed to by the Respondent, and attached thereto are the following:

(1) The Judgment of Gbemudu, J. in Suit No. Ar73/89 [Exhibit A]

(2) Copies of Letters written by M. I. Onochie, Esq., on behalf of the 1st Appellant to other Solicitors acting on her behalf [Exhibits B & C]

(3) Certified true copy of the 151 Appellants’ Affidavit filed in Suit No. N35/2004 and some Exhibits annexed thereto [Exhibit D]

The Appellants as the Defendants therein, filed a 32-paragraph Counter- Affidavit deposed to by the 1st Appellant, and attached thereto:

(1) A Copy of the proceedings in this Court dismissing his appeal on the 9th of June, 1999 as Exhibit A;