Anthony Ibekwe .v Oliver Nwosu (2011)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Enugu Division (‘the court below’ for short) delivered on February 23rd, 2006 which affirmed the judgment of Awogu, J. (as he then was) delivered on 6th July, 1987 at the High Court of Anambra State, Onitsha.

It is apt to state the facts of this matter briefly. The respondent was allocated a state land of Otumoye Creek Road, Fegge Onitsha in 1965. The land was registered as 80/80/648 and referred to as Exhibit “B”. The respondent sold a portion (2/5th) of same to the appellant who paid five hundred pounds as consideration. He started to develop same pending the execution of an assignment to him by the respondent with the consent of the Governor or appropriate authority. In 1978, the State Government stopped all construction works on the land and invited application for compensation for works done on the plot – Exhibit ‘B’. The sum of N2,500.00 paid by the Government for compensation was paid into the Court Registry. In March 1979, the Government revoked the State Building Lease and allocated to the respondent another piece of land – plot R/81 at Niger Bridge Head, Onitsha registered as 37/37/1061 which is referred to as Exhibit A. The appellant showed interest in Exhibit A. During negotiation, the respondent asked for N60, 000.00 which was later reduced to N30, 000.00. The appellant who did not pay same, entered into Exhibit ‘A’ against the wishes of the respondent and commenced construction. The respondent sued the appellant for trespass, damages and injunction. The appellant, in his defence, counter-claimed for specific performance as he contended that the respondent’s constructive trusteeship in respect of exhibit B got transferred to the new plot R/81- Exhibit A.

The learned trial judge garnered evidence and was properly addressed by learned counsel for the parties. In the considered judgment delivered on 6th July, 1987, the reliefs claimed by the respondent were granted while the appellant’s counter-claim for specific performance was dismissed. The appellant’s appeal to the court below was dismissed on February 26th, 2006. This is a further appeal to this court.

On January 31st, 2011 when the appeal was heard, learned counsel for the appellant adopted the appellant’s brief of argument as well as appellant’s reply brief of argument and urged that the appeal be allowed. In the same fashion, learned counsel for the respondent adopted the respondent’s brief of argument and urged that the appeal be dismissed.

The two (2) issues submitted for determination of the appeal by the appellant read as follows:-

“(a) Whether the Court of Appeal was correct in holding that there was no basis in law or equity for the appellant to claim that his interests in Exhibit B (Otumoye Creek Road Plot) got automatically transferred to the newly allocated land Exhibit ‘A’ – R/81 Niger Bridge Head, Onitsha.

(b) Whether the Court of Appeal was right in holding that the appellant’s interest died with the revocation of Exhibit B and therefore the appellant had no right to counter-claim for Exhibit A to be assigned to him by way of specific performance.”

The respondent also formulated two (2) issues for determination in this appeal. They read as follows:-

“(a) Whether the appellate court was right in holding that the revocation of Exhibit ‘B’ extinguished all rights therein and there was no live interest in law and equity whatsoever to transfer to the new allocation Exhibit ‘A’ by the appellant but a claim for compensation for improvement on Exhibit ‘B’ .

(b) Whether the Appellate Court as well as the trial court was right on the basis of the available evidence in dismissing the appellant’s counter-claim and entering judgment for the respondent for damages for trespass and injunction.”

Arguing issue (a) learned counsel for the appellant referred to Exhibit D and submitted that the two lower courts did not properly consider the full import, connotation and denotation of same.

Learned counsel submitted that a proper construction and application of Exhibit D makes it clear that the conclusion of the court below that there was no basis in law or equity for the position of the appellant that his interest in Exhibit B should automatically transfer to the new allocation – Exhibit A is unsustainable. He felt that Exhibit D makes it clear that the new plot, Exhibit A was in exchange for the original plot – Exhibit B which should rightly invoke the principles of constructive trust. He referred to Black’s Law Dictionary, Sixth Edition page 1510 and cited Udensi v. Mogbo (Nee Udensi) (1976) 6 ECSLR 354 at 361.

Learned counsel finally submitted that the facts of this case are apt for the application of the principles of constructive trust.