MR. Ernest Gwacham V. Mrs. Sophia Ilondu & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

The 1st respondent had sued the appellant along with the 2nd respondent and claimed that her family is the rightful owners, occupiers and holders of one half of Stall No. R1/257 and Stall No. GE/257 at the main market, Onitsha. The action is sequel to the sale of the Stalls above mentioned by the 2nd respondent – the first son of the 1st respondent to the appellant.

The claim was denied by both the appellant and the 2nd respondent. The appellant, on his part set up a counter claim against the 1st respondent and claimed general damages for trespass and loss of earnings in respect of the Stall No. GE/257.

The parties filed and exchanged their respective pleadings which were amended and further amended. The extant pleadings of the 1st respondent are the further amended statement of claim dated 29th Sept., 1999 and filed on 30th Sept., 1999 and the amended reply to the statement of defence of the appellant and the 2nd respondent and the appellant’s counter claim dated and filed on 30th March, 2009. The appellant also filed a further amended statement of defence and counter

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claim dated 11th November, 1999 and filed on 12th November, 1999. The 2nd respondent also has a further, further amended statement of defence dated 16th November, 1999 but filed on 3rd February, 2009.

It is noteworthy that the suit had passed through the hands of Hon. Justices G. U. Ononiba, B. A. Nwankwo, V. N. Umeh, C. E. K. Anigbogu, l. C. Nwadi at one time after another before it finally settled in the hand of P. C. Obiora, all of the Anambra State High Court of Justice, sitting at Onitsha. The parties led evidence both oral and documentary and thereafter, the learned counsel for the parties filed and exchanged their final written addresses which were respectively adopted by each of them. In his judgment, the learned trial judge – P. C. Obiora, J., on 23rd April, 2012 found for the 1st respondent and on the other hand, dismissed the appellant’s counter claim.

The appellant, not unnaturally being dissatisfied with the decision against him, approached this Court, armed with a Notice of Appeal which contains 12 grounds of appeal. The appellant’s brief of argument settled by Obumneme Ezeonu, Esq., dated 26th July, 2012 was filed on 27th July, 2012. In

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it, he nominated five issues for the determination of the appeal thus:-

1. Whether the learned trial judge was right when he held that the stalls in dispute are not the personal properties of the 2nd respondent but formed part of the estate of late Julius Ilondu. Grounds 1, 2, 3, 4, 5 AND 8.
2. Whether it was proper for the learned trial judge to have granted the claims of the 1st respondent despite his finding of fraud and illegality. GROUNDS 6 AND 12.
3. Whether it was proper for the learned trial judge to have refused or neglected to make a finding on the issue of custom upon which parties joined issues in their pleading. GROUND 7.
4. Whether the learned trial judge was right in dismissing the counter-claim of the Appellant. GROUND 9.
5. Whether based on the totality of evidence adduced in this case, the judgment of the trial Court is sustainable.

GROUNDS 10, 11 AND 13

On his part, the 1st Respondent’s brief of argument, settled by Onyechi Ononye, EsQ., was dated and filed on 8th October, 2012. He suggested three issues for the determination of the appeal, namely:

1. WHETHER the learned trial judge was right when he held

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that part of stall No.R1/257 and stall No. GE.257 formed part of the estate of late Julius Ilondu and not a gift to the 2nd defendant now 2nd respondent notwithstanding the fact that they were not reflected on the letters of administration. (GROUNDS 1, 2, 3, 4, 5, 6, 11 AND 12).