Nicholas Okere V. Theresa Akaluka (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Judgment of His Lordship, Honourable Justice U. D. Ogwurike of the High Court of Justice Imo state of Nigeria Holden at Owerri Judicial Division which Judgment was delivered on Tuesday the 1st day of February, 2005 granting the plaintiff (now Respondent’s) Reliefs (a), (b) and (c) of the particulars of Claim.

It would be recalled that the Respondent as plaintiff in the Lower court by her Further Amended statement of claim contained in pages 139 to 144 of the Record of Appeal dated 25th day of June, 2003, claimed then from the Defendants jointly and severally in paragraph 10 thereof as follows:

“(a) Declaration that the Plaintiff and the 1st Defendant on record are joint owners of the property Plot WB85A Road 8, Federal Housing Estate, Trans-Egbu Road, Owerri.

“(b) Order of the Honourable Court to the effect that the purported sale of the aforementioned property by the 1st Defendant on record to the 2nd Defendant without the consent of the plaintiff is null and void and to no effect.

“(c) Perpetual injunction Restraining the Defendants their servants, agents, privies, successors-in-title in whatever name from ejecting the Plaintiff and her children from the aforementioned property.

“(d) In the alternative to the above, the Plaintiff Claims that she is in equity entitled to at least 50% of the appropriate market value of the property at the time of sale with 21% monthly interest with effect from commencement of this action, the Plaintiff and her children are entitled to remain in the property in dispute until the said 50% of the value of the property is paid to her by the 1st (Plaintiff ?) (Read 1st Defendant)”.

Issues were joined by the parties with the 2nd Defendant (now sole Appellant following the demise of the 1st Defendant and striking out of his name), filing a Further Amended Statement of Defence and contending in paragraph 11 thereof inter alia:

“11. The Defendant Mr. Nicholas Okere does not admit that the Plaintiff is entitled to any of the Reliefs claimed by her in paragraph 10(a), (b), (c) and (d) of the Further Amended Statement of Claim and shall at the trial urge the Honourable Court to view and dismiss the Plaintiff’s action as a GOLD DIGGING EXERCISE and as being frivolous, vexatious, mischievous, and without merits but just calculated to delay the Defendant Mr. Nicholas Okere from the reaping the fruits of his sweat and hard earned money.”

At the hearing of the case, the plaintiff (now Respondent) testified as PW1 and called two other witnesses (PW2 and pw3) Iheanyi Michael Akaluka (the son of the Respondent and her deceased husband/1st Defendant) and Mathias Okoronnaya Nnaji an Estate Value and Surveyor.

The Brief facts of the case as can be gleaned from the pleadings of the parties are that Paul Akaluka the 1st Defendant then, was the husband of the Respondent until his demise. The bone of contention in the Suit now on Appeal is the house/property known and situate at plot WB85A, Road 8 Federal Housing Estate, Trans-Egbu Road, Owerri which property was allocated to Late Mr. Paul Akaluka the said husband of the Respondent by the Federal Ministry of Housing and Environment in 1982 (precisely on 1/12/82).

At the time of allotment, the property was a one bed room apartment. It was the Plaintiff/Respondent’s case that she contributed financially towards the payment of the purchase price for the property and reconstruction and improvements to the said property. There was no dispute by the parties that as at when the property was allocated to the deceased they lived together with their family of seven children at No. 12 Erekwemwa Street, Owerri and that it was after the reconstruction and expansion of the property in dispute to a three bedroom apartment that the Respondent, her late husband and seven children moved there in.

It was the further case of the Respondent that they lived together in the disputed property until 1986 when the Late Paul Akaluka packed out of the building abandoning his wife and seven children in the house whereof the latter continued to live till the suit was instituted. Unfortunately, while his wife and children were still resident in the property, the deceased husband of the Respondent sold the house to the Appellant (Nicholas Okere) without the knowledge of his wife and children.

The Respondent claimed that being a joint owner of the property Mr. Paul Akaluka (deceased) could not have disposed of the property without her (Respondent’s) consent and that having so sold the property, the sale was null and void and of no effect whatsoever.