K.R. Ramanchandani Vs Bassey Ekpenyong (1975)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N.

This is an appeal from the judgment of Inyang, J., in the High Court of Calabar delivered on December 29, 1972, in which he granted to the plaintiff recovery of possession of two buildings named Taj Mahal Hotel and the Dance Hall with Bar together with an annual rent of the property at 600 (N1200.00)

The facts of the case may be stated briefly as follows:  The subject matter of this case are two buildings with Taj Mahal Hotel and a Dance Hall situate at 70 Target Road, Calabar. The material period is from 1961 when the plaintiff and the deceased Indian husband were separated by divorce after having lived at 23 Bassey Street until the Liberation of Calabar on October 18, 1967. The plaintiff sued for the recovery of possession of the two buildings from the defendant who claimed to have obtained an assignment from the deceased. It is clear from the Statement of Claim that the two premises are business undertakings, not a matrimonial home, of the plaintiff and the deceased. It was after the divorce between husband and wife in 1961 that the husband removed from 23 Bassey Street and went to stay at the Taj Mahal Hotel, during which period the defendant met the deceased there. The defendant, who was engaged as the Managing Director to look after the Hotel and the Dance Hall, claimed to have obtained an assignment of the management of the Hotel and also to have bought the Dance Hall; he maintained that the Hotel was owned by the deceased husband of the plaintiff but that the plaintiff owned the Dance Hall.  The trial Judge, having found that the two buildings were under the one management and control of the Indian Trade Company Ltd. who were running the business with the defendant as the Managing Director, ordered that the defendant should quit the two buildings which he held to belong to the plaintiff as owner. The learned trial judge disbelieved the contention of the defendant either that there has been an assignment to him by the deceased or that he had been given a valid Power of Attorney as he claimed.

It is from this judgment that the present appeal has been brought. On a number of a total of six grounds, the first three of which learned counsel for the appellant offered to abandon, the remaining three which he argued at some length dealt with his claim that the learned trial Judge was wrong to have held that the two buildings belong to the defendant/appellant, that the Power of Attorney had effectively transferred the management of the Taj Mahal Hotel to the defendant/respondent who had bought the Dance Hall as owner, and that the Indian Trade Company Ltd. is an entity separate and distinct from the defendant/respondent under the law.

We observe that the plaintiff/respondent was found by the learned trial Judge to be the owner of the two premises partly on the strength of Exhibits 3 and 4 which are conveyances to her of the land on which the buildings are situated. The plaintiff stated in paragraph 2 of her Statement of Claim as follows:

“The land on which these premises stand belongs to the plaintiff by purchase on various dates from Mrs. Louisa Umo Edem and from Chief Asibong Ene Obong representatives of Ekpo Nwa Family, as per several deeds of conveyance.”

The plaintiff prayed in aid Exhibits 3 and 4.  On the other hand, the defendant stated in paragraph 2 of his Statement of Defence as follows:

“In answer to paragraph 2 of the Statement of Claim the defendant avers that to the best of his knowledge, information and/or belief the land at No. 70 Target Road, Calabar, on which the premises stand is the property of one Mr. Juriat Peregrino Cassarm formerly of No. 13 Bonny Street, Calabar, but now of No. 27 Offin Road, Lagos, a Nigerian, to whom he is a tenant in respect of the same for 99 years (the term of tenancy being concurrent with that of the Taj Mahal Hotel) at a yearly rental of 150 (One Hundred and Fifty Pounds Sterling) which he, the defendant, has been paying as due and payable.”

The defendant based his averment on Exhibits 16 and 20.

The plaintiff’s case is that she and one Sadhuram Rijhumall (deceased) were married in 1948 until the marriage was dissolved in 1961. They had four children of the marriage of whom one died in 1961 before they  separated in that year and the husband left the matrimonial home at 23 Bassey Duke Street, Calabar. The plaintiff claimed that at the height of their love as man and wife, she bought two adjacent pieces of land in fee simple in possession free from any encumbrances from a Mrs. Louisa Umo Edem, the first plot of land having been purchased on September 5, 1955 (Exhibit 3) while the second was purchased on November 5, 1956 (Exhibit 4). It was on these two adjoining pieces of land that the Taj Mahal Hotel and the Dance Hall (with the Bar) were built in 1954 and 1957 respectively.

Although there was some evidence that the plaintiff and the deceased husband jointly provided the money for the building of the Taj Mahal Hotel, nevertheless the building plans of both premises were done in the name of the plaintiff alone. The deceased husband lived at the Hotel between 1961 and 1965 when he returned to India and took the remaining three children of the marriage with him, leaving the plaintiff behind in Nigeria. After the death of their father in India, the three children returned to Nigeria, since when it would appear that both the plaintiff and the defendant had borne the payment of the school fees of some of the children. The plaintiff denied any knowledge of the sale of the Dance Hall with Bar to the defendant and of any mortgage of the Taj Mahal Hotel to the African Continental Bank Ltd., as alleged by the defendant. She also denied having given her late husband any Power of Attorney to deal with her property at 70 Target  Road, Calabar. The Power of Attorney which was tendered in evidence by the defendant is Exhibit 16; and the plaintiff tendered Exhibit 10 which is a letter in which the plaintiff refused to sign the Testatum to the Deed of Mortgage of what apparently is the Taj Mahal Hotel to the African Continental Bank Ltd. It was an attempt to get the plaintiff to sign away her rights.

The plaintiff took possession of the premises at 70 Target Road,  Calabar, when it was at last vacated by the Manager who had been put in charge of it by the defendant before the civil war. She kept her children there, although she continued to live at 23 Bassey Duke Street, Calabar. Then the Administrator and Planning Authority, after inviting the plaintiff to his office for a discussion about the Government proposal to acquire interest in the rent of the Taj Mahal Hotel, wrote another letter to the Police instructing them to release the keys of the premises to the defendant who had lately returned to Calabar after the civil war. It is interesting to quote here at some length the relevant part of the first portion of Exhibit 8 as summarised by the learned trial Judge as follows:

“In the above portion of Exhibit 8, item (a) of paragraph 1, that is to say, survey plan “No ISH 1 measuring 2428.10 square yards” refers to the survey plan attached to Exhibit 3 which is one of the root of title of the plaintiff to the premises at No. 70 Target Road and to which reference had been made earlier; and item (b) of the same paragraph, that is to say, survey plan “No. ISH 77 measuring 1505.65 square yards” refer to the survey plan attached to Exhibit 4 which is the second root of title of the plaintiff to the premises at No. 70 Target Road and to which reference had also been made earlier. Item (c) of the same paragraph, that is to say, survey plan “NO. ISH 13 measuring 604.19 square yards is not before the court. Item (d) of the same paragraph, that is to say, survey plan “No.2 measuring  2612.73 square yards” refers to the survey plan attached to Exhibit 20 which is one of the root of title of the defendant to the premises at 70 Target Road and which is a deed of conveyance dated 25/5/61 and made between Sadhuram Rijhumall (as the lawful Attorney of the Plaintiff) and Jimat peregrino Cassarm.  The survey plan NO. ISH 2 in Exhibit 20 describes the property as belonging to the plaintiff. Item (e) of the same paragraph 1 of Exhibit 8, that is to say, survey plan “No. ISH 51 measuring 973 square yards” refers to one of the survey plans attached to Exhibit 18 which is another root of title of the defendant to the premises at 70 Target Road. It is a deed of conveyance dated 17/3/61 between Sadhuram Rijhumall (as the lawful Attorney of the plaintiff) and Edward Eboh. It is shown on survey plan No.ISH 51 that the land is the propery of the plaintiff. Item (f) of the same paragraph in Exhibit 8 that is to say survey plan No. ISH. 80 measuring 1333.22 square yards “is another survey plan attached to Exhibit 18 and it is shown on it that the land is the property of the plaintiff.”

On the other hand, the defendant who gave evidence in his own defence and called one witness, a Mr. Okoye, the Solicitor to the African Continental Bank, stated that Exhibit 16 which Mr. Okoye produced was the deed of mortgage of the Taj Mahal Hotel to the Bank and that it was executed by the plaintiff in 1955.  The learned trial Judge observed as follows: