Ozurumba Nsirim V Dr. Samuel W. Amadi (2016)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal Holden at Port Harcourt in appeal No.CA/PH/55/98 delivered on the 22nd day of April, 2004 in which the Court allowed the appeal of the instant respondent in parts.

The respondent, as plaintiff instituted suit No.PHC/341/87 in the High Court of Rivers State, holden at Port Harcourt in which he claimed the following reliefs in the Statement of Claim:

1. A declaration that the plaintiff who is the next of kin of Chief Christian O. Amadi (deceased) is entitled to the grant of letters of Administration in respect of the Plot 91 Gborokiri Layout, otherwise known as No.3 Andoni Street, Gborokiri, Port Harcourt.
2. A declaration that the plaintiff is entitled to the Assignment of the leasehold interest in respect of Plot 91 Gborokiri Layout, otherwise known as No. 3 Andoni Street, Gborokiri, Port Harcourt.
3. An order revoking and/or nullifying the Letters of Administration dated 15/2/82 purportedly granted to the Defendant in respect of the said Plot 91 Gborokiri Layout, otherwise known as No.3 Andoni Street, Gborokiri, Port Harcourt.

1 4. AnOrder for the Defendant to account for all the rents he wrongly collected from the tenants in the premises from 23/4/80 (when his fathers interest in the property ceased to the date of judgment and payment of the same over to the estate of Chief Christian O. Amadi (deceased).

5. An order of perpetual injunction to restrain the Defendant and/or his servants and agents from interfering with the said property.”

The above claim of the present respondent is based on an assignment of the land in dispute to his late brother, Chief Christian Amadi.

The appellant, however contended that the property in issue was not assigned by his late father, late John Amabibi Nsirim and that the said late John Amabibi Nsirim granted a Power of Attorney to a donee over the said property thereby having nothing left to assign to the privy of the respondent and that the respondent not being armed with Letters of Administration at the time the suit was commenced but suing as the next of kin of his late father, lacked locus standi to institute the action.

Though the High Court granted relief No 2 supra; an order revoking and/or nullifying the letters of Administration dated 15/12/82; the

2Court gave Judgment to the defendant/appellant herein on the ground that his father having granted a Power of Attorney to another, had nothing left to assign to the brother of the plaintiff//respondent herein. The Court, however, failed to consider the issue of locus standi of the plaintiff/respondent to institute the action as raised by the defendant.

Dissatisfied with the above judgment, the present respondent appealed to the Court of Appeal, Holden at Port Harcourt which Court held, in the judgment delivered on the 22nd day of April, 2004, inter alia, as follows:-

“In conclusion, the appeal is allowed only in respect of paragraph 24(2) of the Statement of Claim. Accordingly I declare that the plaintiff is entitled to the assignment of the leasehold interest in respect of Plot 91 Gborokiri Layout, otherwise known as No.3 Andoni Street, Gborokiri Port Harcourt. He may therefore take the appropriate steps to have the assignment duly registered and also apply for a rectification of the Register of Title Deeds…”

See page 150 of the record.

It should be noted, at this stage, that the present appellant, who was respondent in the Lower Court, neither cross appealed

3nor filed a respondents notice against the judgment of the trial Court for failure to determine the issue of locus standi as raised in the pleadings and address of counsel. Rather than file a cross appeal or respondent notice, the learned counsel for the respondent therein raised an issue touching and concerning the non determination by the trial Court of the issue of locus standi of the plaintiff to which the Lower Court, at pages 148 to 150 of the record had this to say inter alia:

”I now turn to issue 1 in the respondents brief which seeks to question the competency of the plaintiff’s claim. The formulation of the issues for determination have to come within the ambit of the grounds of appeal. See A-G Bendel State vs Aideyan (1989) 4 NWLR (Pt.118) 646. The respondent’s issue should arise from the grounds of appeal. See U.A.C. (Nig) Ltd vs Global Transports S.A. (1996) 5 NWLR (Pt.448) 291: Yaktor vs Gov Plateau State (1997) 4 NWLR (Pt.498) 216. Where there is no cross appeal, the respondent is duty bound to confine himself to the appellant’s grounds of appeal. See Edem vs Cannon Ball Ltd (1998) 6 NWLR (Pt.553) 298. However, a respondent to an appeal may file respondent’s Notice in accordance with Order 3