Comfort Obiazikwor & Ors. V. Jude Chike Obiaziakwor & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

U.M. ABBA AJI, J.C.A.

This appeal is against the judgment of the High Court of Justice, Delta State sitting at Agbo, in Suit No. AG/28/91, delivered on the 3rd July, 1992.

The Plaintiffs at the lower court herein after referred to as the Appellants sued the Defendants now Respondents and claimed as per paragraph 20 of the amended joint statement of claim, the following reliefs.

(i) A DECLARATION that in accordance with the Customary Laws of Owanta Community, The story building situate at No. 22, Obiazikwor Street, Boji Boji Owa is jointly owned by the 2nd -9th Plaintiffs and the 1st Defendant as children of the Late Chief Obiazikwor Nwozor.

(ii) A DECLARATION that the purported sale of the property situate at No. 22 Obiazikwor Street, Boji Boji, Owa by the 1st Defendant to the 2nd Defendant without the prior consent of the plaintiff’s as mentioned above is void and of no effect whatsoever.

(iii) A DECLARATION that the 1st Defendant has no right or privilege to sell, transfer, alienate, assign or in any other way deal with the above property without the prior consent of the 2nd – 9th Plaintiffs and in consultation with the 1st Plaintiff.

(iv) PERPETUAL Injunction restraining the 1st-2nd Defendants jointly and severally from dealing with and or carrying on any further transactions in respect of the said building described above without the consent of the Plaintiffs.”

Pleadings were duly filed and exchanged and the case proceeded to trial. The 1st, 3rd and 5th Appellants testified and called two other witnesses. The Respondents called three witnesses including the 2nd Respondent. At the end of oral evidence and address by learned counsel, the learned trial Judge in a considered judgment dismissed the Appellant’s case. In dismissing the Appellant’s suit, the learned trial Judge held as follows:-

“In sum, having regard to the evidence which – I accept; I hold that:

(a) The house in dispute was one of the houses of the deceased which was shared in December, 1990 as I find it difficult to believe that the house of the deceased was sold when he (deceased) was alive and when he had not transferred the property to 1st Defendant.

(b) It is also my firm view that No. 22 Obiazikwor Street, Boji Boji, Owa was given to the 1st Defendant exclusively. The house in dispute is no family house or property and the authority of Alao v. Ajani (1989) 4 NWLR (Pt. 113) page 1 AND Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) Page 208 cited by Mr. Ojo do not apply.

I am of the view that the Plaintiffs are not joint owners of the house in dispute, nor was the said house shared to anyone of them.

(c) Having so found that the house was shared to the 1st Defendant exclusively it follows that he is entitled to deal with the said property as he likes. He can sell, alienate or mortgage the said property.

(d) The question or issue of property acquiring the house by the 2nd Defendant from the 1st Defendant, prior to the sharing of the asset, or at any other time thereafter, is largely irrelevant, as I have found that the property was shared exclusively to the 1st Defendant during the sharing exercise.