Gilbert Ezeigwe Vs Awawa Awudu (2008)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, holden at Port Harcourt, in appeal No. CA/PH/96/98 delivered on the 4th day of December, 2001 in which the court dismissed the appeal of the appellant against the judgment of the High Court of Rivers State in suit No. PHC/218/90 delivered by OKOR J. on the 2nd day of May, 1997.

In the further amended Statement of Claim, the appellant, as plaintiff in the High Court, claimed against the respondent, then defendant, the following reliefs:

“(1) A declaration that the plaintiff is entitled to the possession and ownership of Plot 2, Block 250 Orije Layout, Port Harcourt duly registered as No. 83 at page 83 in volume 433, Lands Registry, Enugu now kept at the Port Harcourt Lands Registry.

(2)N100,000.00 (one hundred thousand naira) only as damages for trespass.

(3) Perpetual injunction restraining the defendant, her servants or agents from further interference with the said property.”

It is the appellant’s case that his father, James Ezeigwe and the respondent entered into an agreement sometime in 1958 in which it was agreed by the parties thereto that the said father of the appellant will construct a 29 room building on a plot of land, now in dispute, which was leased to the respondent by the government of the then Eastern Nigeria for the sum of E6,000.00 (N12,000.00). The appellant’s father completed only 19 of the agreed 29 rooms; that when the father asked for payment from the respondent which she was unable to pay, the respondent allegedly applied for the land to be assigned to the plaintiffs father as shown in exhibits E.F. & C

contained in the Land Registry file which was tendered, admitted and marked as exhibit C; that upon the death of the father, appellant stepped into his shoes and the respondent granted the appellant an irrevocable power of attorney, Exhibit A dated 25th June, 1966 in respect of the said property.

On the other hand, it is the case of the respondent that the plot of land in issue was allocated to her by the then government of Eastern Nigeria in 1958 and that she subsequently entered into an agreement with the father of the appellant to construct a building of 29 rooms thereon for the sum of E3,000.00 (N6,000.00) but that the father of the appellant could only complete 19 of the rooms leaving the respondent to complete the remaining 10 rooms after the Nigeria Civil War; that in September, 1966, the appellant assisted her to escape to the North because Northerners were at the time being killed in Port Harcourt. The respondent being of Nupe extraction from the present day Niger State in Northern Nigeria; that before she escaped, she told the appellant to be collecting rents from the tenants in the property and the appellant requested the respondent to sign a document which would show the tenants that he had the authority of the respondent to collect the rents which she signed without the contents being read over and interpreted to her as she is an illiterate; that the appellant took advantage of her and induced her to sign exhibit A, which turned out to be an irrevocable power of attorney; that at the end of the civil war the respondent returned to Port Harcourt and the property was duly released to her by the relevant authority of Rivers State and she had remained in possession ever since.

At the end of the hearing, the learned trial judge, after reviewing and evaluating the evidence and the addresses of counsel, dismissed the claims of the appellant resulting in an appeal to the Court of Appeal where the issues for determination were as follows:-

“(1) Whether the Learned Trial Judge was not in error in rejecting as inadmissible the building agreement made in 1958 between plaintiff’s late father and defendant

(2) Whether the Learned Trial Judge was not in error when he held that the defendant had proved that she executed Exhibit “An through fraud perpetrated on her by the plaintiff

(3) Whether the Learned Trial Judge ought to have expunged the evidence of the defendant, which evidence was uncompleted, and not subjected to cross-examination and if so, whether the omission resulted in a miscarriage of justice

(4) Whether the Learned Trial Judge was not in error when he held that the only document relied upon by plaintiff in proof of his case was an assignment, not executed, not registered and not before him.