Dr. Okere Nicholas Iragunima & Anor V. Beauty Igah & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A (Delivering the Leading Judgment)

The appeal is against the ruling of Hon. Justice E.N. Ichoku, then the Chief Judge of Rivers state High court, delivered on 13th February, 2000. The Appellants were the plaintiffs while the Respondents were the Defendants at the lower court. By a Deed of Assignment registered as No 83 at page 83 in volume 318, one Mercy A. Ogubie assigned her interest in the property at No 71 Bonny street, otherwise known as Block ‘D’ Port Harcourt to Madam Elizabeth E. Igah, the mother of the then 1st Defendant, now 1st Respondent and the 1st plaintiff now 1st Appellant. The said Madam Elizabeth Igah, a business woman in Port Harcourt, took steps on 23rd May, 1972, to assign her interest in the property in dispute to the 1st Respondent her son. The aforesaid Deed of Assignment was later registered as No 11 at page 11 in volume 219 in the Lands Registry, Port Harcourt in 1995.

The said Madam Elizabeth Igah, the mother of 1st Appellant and 1st Respondent, died intestate in July, 1976. After the demise of their mother, the 1st Respondent assigned his interest in the property in dispute to the 3rd and 4th Respondents. Twenty years (20) after the demise of Madam Elizabeth Igah and also twenty three (23) years after the aforesaid Madam Elizabeth Igah had appended her signature to this document purportedly assigning her interest to her son -the 1st Respondent, and also a year after the 1st Respondent had assigned the property in dispute to the 3rd and 4th Respondents, the Appellants as plaintiffs, instituted this suit now appealed against at the lower court claiming per their amended statement of claim for the following:

1) A declaration that the property in dispute is a family property of late Madam Elizabeth the same laving been partitioned or shared in, accord with Okrika native law and custom;

2) An order setting aside the Deed of Assignment made on 23d May, 1972 made between the 1st Respondent, and the late Madam Elizabeth Igah;

3) An injunction restraining 1st Respondent from interfering with the Appellants right of enjoyment of the said property or selling same.

The writ was taken out in 19th March 1996 challenging inter alia the deed of assignment registered by the 1st Respondent in 1995.

As contained at pages 69 – 80 of the Record of appeal, as the parties exchanged their respective pleadings. The 1st Appellant testified on the plaintiffs’ pleading as PW.1. Thereafter 1st Respondent by way of motion on notice, applied to set down the points of law raised in their pleadings. The ground of the application was that the action commenced was statute-barred; that the plaintiffs/Appellants not being parties to the Deed of Assignment between the late Madam Igah and the 1st Respondent, they (Appellants) have no locus standi to pray the court to set aside the Deed of Assignment. The lower court heard the parties and then delivered a ruling upholding the points of law raised by the Applicant and dismissing the Appellants claim in toto, and therefore, the appeal filed timeously, containing seven (7) grounds of appeal, from which, per the Appellants brief, two issues for determination have been raised. The issues read as follows:

“1. whether from the state of the pleadings, the learned trial judge was justified in upholding that the action was statute-barred and there was no fraudulent concealment or concealment on the part of the Respondent of his interest in the property in dispute.

2. whether the learned trial Chief Judge was right in holding that the Appellants have no locus standi to maintain this action”.

The 1st, 2nd and 3rd- 4th Respondents in their respective briefs adopted the Appellant’s two issues as germane to the determination of this appeal. On the hearing date of this appeal, the parties (except 3rd and 4th Respondents) identified and relied on their respective briefs of argument. The brief of the 3rd and 4th Respondents was deemed argued.

The Appellants’ argument under Issue 1 is that the 1972 transaction, Exhibit ‘A” the deed of assignment, having been repudiated by the assignor before registration, no longer vested any registrable interest in the 1st Respondent. That is, that the 1st Respondent could not register an interest not vested in him since Exhibit ‘A’ was repudiated by Madam Elizabeth Igah, the assignor., and the repudiation was acknowledged and accepted by the 1st Respondent in Exhibit ‘D’ dated 18th July, 1972. The Appellants further submitted that on 16th June 1972 the late Madam Elizabeth Igah, the named assignor in Exhibit ‘A’ had published in the Nigerian Star newspapers following declaration or caveat:

DECLARATION

I, Elizabeth Igah of Okrika, resident at 71 Bonny Street, Port Harcourt, do hereby make the following declaration, that I had in error signed some documents concerning my house, No 71 Bonny Street, as if assigned to someone. And therefore any documents, deeds ET CETERA CONCRNING 71 Bonny street House, if tendered by anyone, for mortgage, loan on or sale of the said house should be discountenanced. Anyone disobeying this declaration does so at his or her own risk. The house is still mine.

ELIZABETH IGAH 71 Bonny Street, P.H 18th June, 1972