Remigius Ogidi Maduka V. Fidelia Nwosu (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of A. B. Njemanze, Judge of the High Court of Imo State sitting at Orlu in Imo State of Nigeria, and delivered on the 27th day of April, 2006.

The judgment was in favour of the Respondent who was the defendant in the trial court against the Appellant who was the plaintiff at that court. The plaintiff’s claim at the trial court is as follows:

(a) A declaration that the plaintiff is a bona-fide assignee, and entitled to the possession of the piece or parcel of land, and the building/s thereon, situate and lying at Umuna in Orlu Local Government Area within the Orlu Judicial Division known as and called “ALA UZOULO” at No. 13 Umuduruaku Street, Umuna.

(b) A declaration that the piece or parcel of land, and the building/s thereon, situate and lying at Umuna in Orlu Local Government Area within the Orlu Judicial Division known as and called ALA UZOULO” or No. 13 Umuduruaku Street, Umuna is not part of the estate of Geoffrey Nwosu (deceased) or

(c) A declaration that the purported alienation of the said property by Nathaniel Ugwueze (deceased) in favour of Geoffrey Nwosu (deceased), while the property was lawfully mortgaged, is null and void and to no effect.

(d) An order for an account of the rent and other income received by the defendant in respect of the property from 22nd day of December 1994, until possession is returned to the plaintiff, and the sum of N50,000.00 (fifty thousand naira) as general damages for trespass.

(e) An Injunction restraining the defendant by herself, her agents and servants from interfering with the plaintiffs peaceful and quiet ownership/occupation of the property or holding out the property as part of the estate of Geoffrey Nwosu (deceased).

The defendant at the trial court joined issues with the plaintiff and the matter proceeded to trial whereby the learned trial Judge found in favour of the Defendant/Respondent.

Dissatisfied with the judgment of the trial court, the plaintiff, now Appellant filed a Notice of Appeal containing five grounds of appeal found at pages 87 – 92 of the record. The grounds of appeal without their particulars are as follows:

Ground One

The learned trial Judge erred in law when he held thus.

“I am of the opinion and I so hold that no public auction sale of the property at No. 13 Umuduruaku Street, Umuna Orlu ever took place. I am of this view because the PW1 in his evidence said that “after the sale, he went to the property the following day and informed the tenants of the sale of the property. That the tenants did not agree with him and so he left. He told the tenants to carry out an investigation and inform him of the outcome of their investigation”. But the DW1 on his part denied that the property was on mortgage and that it was sold by a public auction to the plaintiff. I believe the evidence of the DW1 that no public auction sale of the property ever took place”.

Ground Two