Mr. Chike Orjiekwe & Anor V. Mrs. Ngozi Orjiekwe & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment delivered on 28/6/2008 by the Anambra State High Court of Justice, holden at Onitsha Judicial Division (hereafter simply referred to as “the lower court”) presided over by Hon. Justice J.I. Nweze (hereafter simply referred to as “the learned trial Judge”).

The case was tried upon pleadings filed and exchanged by the Plaintiff and 2nd Defendant and the pleadings of the said parties were amended as considered appropriate. The Plaintiff who initiated the action died during its pendency and was substituted by the parties on record as Appellants herein, by the order of the lower court made on 22/3/1996. The 1st Defendant in the action equally died during its pendency before the lower court and the said deceased 1st Defendant was also substituted at the lower court with the present 1st Respondent on record in the appeal. The facts of the case as gathered from the Further Amended Statement of Claim dated 13/5/2005 and filed on the same date before the lower court are that the Appellant’s father was the lease-hold owner of the property known as No. 9 Miss Elems Street, Fegge-Onitsha, pursuant to a building lease dated 28/9/1962 and registered as No. 83 at Page 83 in Volume 329 of the Lands Registry Enugu (now Awka). The 1st Defendant in the process – Samuel Orjiekwe, is said to be the first son of the Appellants’ father, while the 2nd Respondent is a businessman in Onitsha. The Appellants not only claimed that their father had been in possession and occupation of the property since the time of the lease but narrated some acts their father exercised in the use and enjoyment of the property. It is the case of the Appellants that sometime in September, 1991; their father was confronted by the 2nd Respondent who claimed to now own the property and started making moves to take possession of the same. That the 2nd Respondent with the use of the Police and intimidation, dispossessed the Appellants’ father of the property by alleging that the said Appellants’ father and Samuel Orjiekwe sold the property to him and thereafter commenced moves to obtain necessary title papers from the Appellants’ father and which moves the Appellants’ father resisted. The Appellants’ father was subsequently arrested and detained for two weeks by the Police at the instigation of the 2nd Respondent who also went about boasting that the Appellants’ father will not be granted bail until he signed the document to perfect the 2nd Respondent’s ostentatious title. That not only were the applications for bail made by the Appellants’ father refused by the Onitsha Area Commander – Mr. I.N. Onozie, but the 2nd Respondent’s complaint to the Police was later followed up with a criminal charge preferred against the Appellants’ father and which charge has long been struck out. The Appellants claimed that sometime in 1998, Samuel Orjiekwe surfaced from nowhere and that the sighting was reported to both the Area Commander’s office and Chief Ezeuko SAN (of blessed memory) but that they do not know what was made of the said Samuel Orjiekwe by these people. The Appellants stated that Samuel Orjiekwe died in 1998 and that it was when they came for the burial of the said Samuel Orjiekwe that they saw an affidavit made by him detailing what he did with the 2nd Respondent with respect to the property in dispute. In the premises, the Appellants claimed against the Samuel Orjiekwe and the 2nd Respondent jointly and severally the following reliefs:-

“a) A declaration that the Plaintiff is the person entitled under the Land Use Act to the right of occupancy in respect of the property known as No. 9 Miss Elem’s Street, Onitsha within jurisdiction.

b) N200,000.00 being damages against the Defendant (sic) jointly and severally for trespass into the aforesaid property known as No. 9 Miss Elem’s Street Fegge – Onitsha.

c) Perpetual injunction restraining the above-mentioned Defendants, their Servants, Agents and Privies from committing further acts of trespass into the aforesaid property.”

I cannot but state that I find it most amazing that the Appellants in a process (i.e. Further Amended Statement of Claim) dated 13/5/2005 and filed on the same date could be claiming anything against the 1st Defendant in the process when by their own showing the said 1st Defendant died sometime in 1998. The case of the 2nd Respondent as gathered from his Further Amended Statement of Defence and Counter-Claim dated 27/4/2006 and filed on 3/5/2006, briefly stated are that the Appellants’ father, Mazi Christian Orjiekwe, was the owner of No. 9 Miss Elems Street, Fegge, Onitsha. That in August, 1991, the Appellants’ father sold and transferred his leasehold interest in the properly in dispute to the 2nd Respondent. The 2nd Respondent claimed that the lease of the Appellants’ father as referred to in the Further Amended Statement of Claim had been superseded by a new lease dated 30/7/1965 and registered as No 93 at Page 93 in Volume 409 of the Lands Registry, Enugu (now Awka). It is the case of the 2nd Respondent that though the Appellants’ father fraudulently concealed the aforementioned lease, but that this is the lease which the Appellants’ father handed over to the 2nd Respondent after the 2nd Respondent had purchased the property in dispute. The 2nd Respondent not only narrated how he came to purchase the properly in dispute and the consideration paid therefore, but also disclosed that the matter of the sale of the property in dispute was the subject of customary arbitration to which himself and the Appellants’ father willingly submitted. This was sequel to the denial of the sale of the property in dispute after the Appellants’ father in collusion with the 1st Respondent had collected the consideration therefore and also executed all necessary title documents. Also relying on the case as set up in the Further Amended statement of Defence, the 2nd Respondent counter-claimed against the Appellants as follows:-

“1. A DECLARATION that the 2nd Defendant is the person entitled under the Land Use Act to the Statutory Right of Occupancy in respect of the property known as No. 9 Miss Elems Street, Fegge, Onitsha.

2. POSSESSION of the said property.
3. ACCOUNT of all rents collected from the said property by the plaintiff from 1st day of September 1991 until possession is given as may be ordered by the court and payment to the 2nd Defendant of the amount found due.
4. Twenty Thousand Naira (#20,000.00) damages for trespass.
5. INJUNCTION restraining the Plaintiff, his servants and agents from interfering with the 2nd Defendant’s right of occupancy over the said property commonly known as and called No. 9 Elems Street, Fegge, Onitsha.”

In their Further Amended Reply to the 2nd Respondent’s pleading dated 16/5/2005 and filed on 23/5/2005, the Appellants still reflected the 1st Defendant in the case to be Samuel Orjiekwe. In the process in question, the Appellants in the main denied that their father ever sold the disputed property to the 2nd Respondent herein either personally or through any agent. The Appellants claimed that their father had no knowledge of any sale of the disputed property to the 2nd Respondent talk less of being a party thereto and that if any of their father’s title deeds is in the custody of the 2nd Respondent, he must have come about the same by stealth and no more. The Appellants also claimed that their father at the time of instructing counsel could not lay hands on the lease of 30/7/1965 and was therefore unaware of any subsequent lease made to him and that if the said lease is with the 2nd Respondent, he must have clandestinely removed the same from their father. In their defence to the counter-claim of the 2nd Respondent, the Appellants denied the entitlement of the said 2nd Respondent to his claims and urged the court to dismiss the same as frivolous, unfounded and fraudulent and set out the particulars of fraud. The Appellants aside from relying on the averments in their Further Amended Statement of Claim and their Reply in defence to the counter claim of the 2nd Respondent; also pleaded illiteracy in the alternative. The lower court heard evidence of the witnesses called by the parties, Exhibits were also admitted and marked as appropriate. After an evaluation of the evidence adduced by the parties in respect of their respective cases, and having also had the benefit of the written addresses of the parties, the learned trial Judge entered judgment in the following manner at pages 334 – 336 of the record:-

“In the light of the foregoing, I am of the view that the parties herein are bound by the decision of the arbitrators as contained in Exhibit D.6. This decision raises the problem of the appropriate order the court should make having regards to the reliefs claimed by the parties. The award was to the effect that Mazi Christian Orjiekwe should refund the money paid by Cyricus Onyedika within two months failing which he should hand over the property to Chief Onyedika. The plaintiffs in their statement of claim sought a declaration that they are the persons entitled to the right of occupancy over the property known as No. 9 Elems Street, Onitsha. That order could only have been made if they had refunded the sum of N400,000 as provided in the award. Having failed to do so that prayer fails and with it the claim for damages and injunction.

The 2nd Defendant counter claimed for a declaration that he is the person entitled to the right of occupancy over the property. Consequent upon default of the plaintiffs in refunding his money he is entitled in line with the arbitral award to be handed over the property. He is therefore entitled to the declaratory reliefs. He is also entitled to possession of the building with effect from 30th of April, 1992. From that same day he also became entitled to an account of all the rent received on the property.

Ordinarily therefore I should enter judgment for him immediately I have however decided to exercise the powers conferred by Section 35(2) and (4) of the High Court Civil Procedure Rules to give effect to the arbitral award. I therefore make the following orders:

(a) The plaintiffs shall within 2 months of today refund the 2nd defendant the sum of N400,000 together with compound interest at the prevailing rate chargeable by commercial banks on loans and overdrafts from the 30th of April, 1992 until the date of final liquidation of the debt or until the 28th of August, 2007 whichever is earlier.

To facilitate the plaintiffs and the 2nd defendant shall separately file in this court within 14 days of today, the amount due to the 2nd defendant as per the order above, verified by affidavit. In the event that the figures differ the parties may apply to the Court for directions. This order shall abate and be void if by the 28th of August the amount adjudged has not been refunded.