Mrs. Gladys Appah V. Mrs. Chinyere Egwuatu (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI,J.C.A: (Delivering the Leading Judgment)

This is an appeal against the Judgment of the High Court of Owerri, Imo State delivered by Hon. Justice C.M.I. Egole on 19th January, 2009 in Suit No. HOW/300/2006 dismissing the Plaintiffs Claim in its entirety and striking out the Defendant’s Counter Claim.

By a writ of Summons filed on 9th June 2006, the Plaintiff/Appellant claims the following reliefs from the Defendant/Respondent as follows:

(i) A declaration that the Plaintiff is entitled to the Statutory Certificate of Occupancy in respect of the portion of land owned by her late husband Mr. Gregory Appah at No. 5 Christ Church Road, Owerri inclusive of the 7 stores (which the said No.3 lock-up store is one) built by her late husband therein.

(ii) The sum of N750,000.00 (seven hundred and fifty thousand Naira) being damages for trespass on the plaintiff’s No. 3 lockup store by the Defendant.

(iii) An Order vacating the Defendant and anyone, whosoever, staying in the said No. 3 lock up store as her agent, tenant sub-tenant or in any manner whatsoever, claiming through her since the Defendants continued stay and challenge of the plaintiff’s title has become inimical to the interest and rights of the Plaintiff.

(iv) Perpetual Injunction restraining the Defendant, her Agent, Assigns, Tenants or Subtenants and any person whosoever claiming through her, from further acts of trespass into the said No. 3 lockup Store and any portion of land at No. 5 Christ Church Road, Owerri.”

The Plaintiff’s writ of summons was accompanied by statement of claim. The Defendant filed a statement of defence dated 20th October, 2006 and deemed filed and served on 7th February, 2007. The Plaintiff filed a reply to defendant’s statement of defence dated 19th February, 2007 and filed on same date. The defendant filed a counter claim dated 11th April, 2007 and filed on the same date.

The facts leading to this appeal may be summarized as follows:

The Plaintiff was the widow of the late Gregory Appah who died in 2001. He had a grandmother – Mrs. Matilda Mmanya Appah who was married to Mr. Appah with whom she bought the land (now known as No. 5 Christ Church Road) from Anukam family of Umuororonjo in Owerri in the 1930s. This land then remains their family compound. Matilda Mmanya and her late husband begat Bridget Appah and Mariana Appah both of whom were left to procreate in the family compound for Mr. Appah family. Both had children. The family compound was shared between the household of Bridget Appah and Mariana Appah.

The Plaintiffs late husband Gregory Appah was one of the children of Bridget Appah, built 7 lock up stores on a part of his share of the land which is part of No. 5 Christ Church Owerri in 1984. He put six tenants as monthly and yearly tenants. Mr. Bartholomew Egwuatu now deceased was the husband of the Defendant who was a tenant in respect of No. 3 lock up store thereat.

The Plaintiff alleged that their existed a long term lease of eight years and four months between her late husband and the husband of the Defendant and that the husband of the Defendant died before the expiration of lease. Upon the death of the Defendants husband,the Defendant continued to be enjoying the lease. The Defendant denied the existence of any lease agreement and claimed it was outright sale evidenced on an irrevocable Power of Attorney with consideration executed between her late husband and the husband of the Plaintiff.

After series of exchange of letters between the parties, when the parties could not agree on this issue, Plaintiff instituted the present action. The Plaintiff testified and called one witness and tendered 14 Exhibits while the Defendant testified on oath but did not call any witness but tendered documentary exhibits. In a considered judgment, the Learned trial Judge dismissed the claims of the Plaintiff on the ground that she has not proved her case and the Defendant has an equitable interest in the subject matter by virtue of the Power of Attorney executed and struck out the Counter claim of the Defendant as it was deemed abandoned.

Being dissatisfied with the judgment of the trial Court, the Plaintiff/Appellant who shall be referred to as Appellant filed her notice of appeal dated the 2nd day of March, 2009 and filed on the 3rd March, 2009 upon seven grounds of appeal.