Josephat Onyia V. Amobi Onyia (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A (Delivering the leading Judgment)

This appeal is against the judgment of the High Court of Justice, Enugu Division of Enugu State delivered by R.C. Agbo J. on 16/6/2004 in Suit No. E/329/1999 (JOSEPHAT ONYIA V. AMOBI ONYIA.) The appellant herein (Josephat Onyia) was the plaintiff and the Respondent (Amobi Onyia) was the defendant in the lower court.

The appellant had in the Suit in the lower court, vide an amended statement of claim dated 20/8/1996 claimed in paragraph 23 thereof as follows:-

(a) N215, 390 (Two hundred and fifteen thousand, three hundred and ninety naira).

(b) Recovery of vehicle No. AN 1522D.

(c) Account of all monies relating to common business transactions.

(d) Declaration that the plaintiff is entitled to ownership of the properties known as Block D.

Unit 9, Federal Housing Estate, Enugu and No. 13 Afuizinwa Street, Azuiyiokwu Layout, Abakaliki, transacted in the name of the defendant.

A summary of the facts that led to the action as can be gleaned from the record is that the parties are brothers of the full blood. The appellant is an elder brother to the Respondent whom he trained in the primary school. He subsequently advanced some money to the said respondent to establish a patent medicine store and to manage it as a joint/common business. The appellant also bought a new Toyota panel van with Registration Number AN 1522D and handed it to the Respondent to run the patent medicine business. He (the appellant) also advanced various sums of money to the respondent and equally procured a number of market stalls at Ogbete Main market in the name of the Respondent. He also bought another vehicle No. IM 3983 G. which he gave to one Godwin Onyia to manage and the proceed there from paid into an account opened in the name of the Respondent. Furthermore, in 1982, he the appellant gave the defendant the sum of N2, 500.00 to purchase a land for him at N0. 13 Afuezinwa Street, Azuiyiokwu Layout Abakaliki. He also got a plot allocation for Block D, Unit 9, Federal Housing Estate, Trans Ekulu, Enugu which allocation was made also in the name of the Respondent. He further completed the building on the plot with the sum of N10, 000 in 1984 and has been living therein till date. Disagreement came between the parties sometime between 1988 and 1990 which eventually led to the appellant filing the Suit in the lower court.

Pleading were subsequently ordered filed and exchanged by the parties who also effected amendments therein in the course of trial. The appellant’s current pleading is dated 22/8/1996 and his reply to the further amended statement of defence is dated 20/3/1997. (see pages 33 and 38 of record.) The Respondents further amended statement of defence is dated 10/2/1997 and filed on 11/2/1997. See page 44 of record).

Hearing in the Suit commenced formally on 6/5/96 wherein the appellant testified and called two other witnesses. The Respondent also testified in his defence and called nine other witnesses.

At the conclusion of hearing and address by counsel for both parties, the learned trial Judge R.C. Agbo J. in his judgment delivered on 16/6/2004 dismissed the appellants claim.

Being dissatisfied with the said decision he filed a Notice of appeal containing 3 grounds of Appeal on 13/7/2004. Briefs of argument were subsequently filed and exchanged. The appellant’s brief of argument dated 29/9/2009 and filed on 12/10/2009 was settled by D.A. Aneke (Esq). There is also the appellant reply brief dated 16/2/2010 and filed on 19/2/2010. The Respondents brief of argument dated and filed on 20/11/2009 was settled by O. Akpamgbo (Esq). At the hearing of the appeal on 7/4/2011, counsel for both parties duly adopted and relied on their respective briefs of argument.

For the appellant 3 issues were raised for determination, to wit:-