Innocent Obiora Nwankwo V. Comfort Agwuna (2007)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A.

The appellant sued the respondent in Onitsha High Court in Suit No.0/598/86 seeking the following reliefs in an Amended Statement of Claim;

“a. A Declaration that the Plaintiff is the bonafide owner in possession of property at Plot 13 Block 87, Modebe Layout otherwise known as No. 26 Afubera Street,Onitsha.

b. An Order of perpetual injunction restraining the Defendant by herself or her agents, servants or privies from trespassing, leasing or interfering with the Plaintiff’s quiet possession use and enjoyment of the said land and the developments thereon.

c. N100,000.00 damages for trespass.”

The respondent filed an Amended Statement of Defence denying the claim. At the trial the appellant testified for himself and called three witnesses to the effect that he bought the disputed property from Mrs Sussana Agwuna. He tendered “Exhibit P2” which was a power of attorney donated to Sussana Agwuna by Theophilus Agwuna over the property in Issue.

The respondent testified for herself and called three witnesses. Her defence was that Sussana Agwuna was the first wife of the late Theophilus Agwuna. The couple were divorced as far back as 1982 and the late Theophilus did not donate any power of attorney to Sussana Agwuna and did not sign “Exhibit P2”, the power of attorney.

She tendered Exhibit D1-D4 as documents to show the genuine signature of the late Theophilus Agwuna. The trial court in its judgment dismissed the appellant’s claim.

DissatisfIed with this judgment the appellant has appealed to this court and the learned counsel for him filed a brief of argument and identified one issue for determination as follows:

“Whether a valid title was transferred to Sussana Agwuna who made a sale of the property in dispute to the Plaintiff.”

The respondent did not file any brief and the appellant was granted leave to argue his appeal on his brief alone.

The learned counsel for the appellant submitted that it was not disputed by both sides that the disputed property belonged to late Theophilus Agwuna. What was in dispute is whether title of the property was transferred to Sussana who in turn sold it to the appellant.

The learned counsel submitted that the trial court was wrong in holding that DW1, DW3 and DW5 were familiar with the signature of late Theophilus Agwuna.

The trial court was also wrong in holding that Exhibit P1 was mutilated and Exhibit P2 was not signed by the late Theophilus Agwuna. The learned counsel also contended that the allegation of mutilation and forgery of the signature of the late Theophilus was not proved beyond reasonable doubt and the trial court was wrong in dismissing the appellant’s claim. He submitted that on the authority of Kadoso V. Daniel (1986) 2 NWLR (Pt. 20) I that the signature of the late Theophilus Agwuna on Exhibit P2 should be presumed to be his signature.