Eric Ordor V. James Nwosu & Anor.(1974)

LawGlobal-Hub Lead Judgment Report

D. O. IBEKWE, J.S.C. 

The plaintiff and the 2nd defendant in this case are husband and wife. They are married under the Marriage Act, but they now live apart. The plaintiff is a civil servant, and the 2nd defendant is the proprietress of a weaving industry.

After their marriage, the couple lived together. But during the recent civil war they began to fall apart, and by the time the war ended in 1970, they had completely fallen apart. As is usual in such cases, either party now accuses the other of desertion.

The suit arises from the rival claims which the couple has set up to lease- hold interest in respect of the property known as No.7 E.C.N. Road, Aba., On the 29th day of September, 1971, the husband as the plaintiff instituted this action against his wife as the 2nd defendant, and the lessor as the 1st defendant,

claiming:-

“1. A declaration that he is entitled to the Leasehold of the property NO 7 E.C.N. Road, Aba, and

2. An order setting aside the purported lease made between the 1st and 2nd defendants in respect of the said property.”

The plaintiff’s case is as follows. On the 20th day of August, 16 he said he had negotiated a lease of the land in dispute with the 1st defendant for an “irrevocable perpetual period” at an annual rent of 40/’97, and that, after paying 300 pounds premium to the 1st defendant, they both entered into “a memorandum of a lease”. In 1967, the plaintiff engaged the services of one Mathias Chukwura, a licensed surveyor, to carry out a survey of the land in dispute and the surveyor produced plan MEC/260/67 for which he was paid his fees by the plaintiff.

Afterward, the plaintiff engaged the services of the late Barrister Anyiam Osuigwe who prepared a deed of lease which was executed between the 1st defendant and himself, and the plaintiff’s signature on the lease was witnessed by his wife, the 2nd defendant. After execution, the documents were handed by him to the 2nd defendant for registration at Enugu but that the 2nd defendant failed to register them. Whenever the second defendant was asked about the documents she simply gave one reason or another.

Finally, on the 30th of March, 1971, the 1st defendant granted a lease of the property in dispute to the 2nd defendant. Hence, the plaintiff was obliged to bring the present action. Fraud was not pleaded in his statement of claim, nor was it raised at the trial.

On the other hand, the case of the 2nd defendant is diametrically opposed to that of the plaintiff. The 2nd defendant claims that the 1963 lease was negotiated by her, but that the lessor insisted that the agreement should be signed between him and the plaintiff who is her husband. In 1967, it became necessary for her to raise a loan in order to develop the disputed land and, as she was asked to produce her title-deed, the plaintiff then suggested that a fresh agreement should be drawn up in her name. Accordingly, she approached on Mathias Chukwura, license surveyor, who made a plan of the land for her, and she paid the surveyor his fees. She, later on, engaged the services of the late Barrister Anyiam Osuigwe who drew up a deed of lease for her, and that the lease was duly executed between the 1st defendant and herself; and her husband, the plaintiff, witnesses her signature on the lease. After execution, she took the lease to the Ministry of Lapds, Enugu, for registration, but, subsequently, the documents were returned to her unregistered, on the ground that the plan attached to the lease was not counter-signed by the Surveyor-General. In support of this allegation, the 2nd defendant produced the covering letter from the Surveyor General which was received in evidence at the trial and marked Exhibit “Y’. When she wanted to take the documents back to Enugu for registration, the plaintiffs refused and persuaded her not to go. As a result, the documents were put in their cupboard in Aba, and they got lost when Aba was overrun by Federal troops in 1968. After the war she approached the lessor and informed him of the loss of the 1967 lease. As a result, a fresh lease was entered into between the 1st defendant and herself and the lease is registered as No. 74 at page 74 in volume 294 of the Lands Registry in Enugu.

It is irrelevant to mention here that at a certain stage during the trial, the learned trial judge decided to call the Surveyor-General who was not called by either party to testify.

After hearing the evidence, the court adjourned the case for judgment. In a reserved and lengthy judgment, the learned trial judge, after reviewing the conflicting claims before him, entered judgment for the plaintiff as follows:

“There will therefore be judgment for the plaintiff against the defendants as follows:

1. A declaration that he is entitled in equity against the 1st defendant to the leasehold of the property situate and known as No.7 E.C.N. Road, Aba.
2. An order setting aside as null and void the lease executed by the 1st defendant and the 2nd defendant dated the 30th day of March, 1971 which lease agreement was duly registered as No. 74 at Page 74 in Volume 494 of the Lands Registry in the Office at Enugu.”

Aggrieved by this decision, the defendants have accordingly brought an appeal to this court. Of the five grounds of appeal filed, only the three following grounds were relied upon by Mr. M.A. Agbamuche learned counsel for the appellants: