MRS. PATIENCE MUOGHALU & ANOR v. MRS. PAULINA UZOAMAKA MUOGHALU & ORS
(2019)LCN/12989(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/E/464/2017
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
1. MRS. PATIENCE MUOGHALU
2. MR. NONSO MUOGHALU Appellant(s)
AND
1. MRS. PAULINA UZOAMAKA MUOGHALU
2. MRS. OGECHUKWU CHIKWUNDA
3. MRS. ADAEZE AWAKA
4. MRS. NNEAMAKA IZU
5. MRS. NJIDEKA CHUKWUMA
6. MS. IFEYINWA MUOGHALU
7. MS. NKEM MUOGHALU Respondent(s)
RATIO
WHETHER OR NOT THE ISSUE OF LIMITATION LAW TRANSCENDS THE HIGH COURT RULES
However, the position of the Supreme Court is that the issue of Limitation Law transcends the High Court Rules. See AJAYI V. ADEBIYI & ORS. (2012) LPELR – 7811 (SC) AT 49 (B ? G) where the Court per Adekeye J. S.C held that:
?Limitation Law and locus standi are both threshold issues which can be raised anytime or for the first time in the Court of Appeal or in the Supreme Court. It is not limited to being raised as a special defence and pleading them specifically as required by the Rules of Court under Order 22 Rule 2 of the Lagos State High Court Civil Procedure Law. It transcends any High Court Rules. It can be raised by preliminary objection at any stage of the proceedings before any Court by any of the parties or even suo motu by the Court. It is therefore noteworthy that an application or preliminary objection seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that the issue of jurisdiction can be raised at any time.?
See alsoANYANWU V. MBARA & ANOR.(1992) NWLR (PT. 242) 386, (1992) LPELR ? 516 (SC) AT 13-14 (A-C). OJIOGU V. OJIOGU (SUPRA). KANJAL V. IFOP (2013) LPELR ? 22158 (CA) AT 41-46 (A-A). OYEBAMJI & ORS. V. LAWANSON & ORS. (SUPRA). The extant position of the law is that where a party raises a defence that an action is statute barred in his statement of defence as in the instant appeal, the specific statute and relevant sections of the statute of limitation on which he relies need not be pleaded. See SHAGARI QUARTERS DEV. ASS. ARGUNGU & ORS. V. HASSAN & ORS. (2014) LPELR ? 22319 (CA) AT 18 (A-B). G. CAPPA LTD V. DAILY TIMES OF NIGERIA LTD. (2013) LPELR ? 22028 (CA) AT 50-51 (C-B). PER BOLAJI-YUSUFF, J.C.A.
THE DEFINITION OF LOCUS STANDI
Locus standi is a legal concept which has been defined and explained in a plethora of authorities. It is defined as the legal capacity of a person to institute proceedings in a Court of law or Tribunal to seek redress for his grievance or enforce his right. For a person to have the locus standi or legal capacity to sue, he must show that he has sufficient or special interest in the matter and that his interest is affected or will be affected by the litigation. See EMEZI V. OSUAGWU & ORS (2005) LPELR -1130 (SC) AT 20 ? 21, (2005) 12 NWLR (PT. 939) 340, PAM V. MOHAMMED (2008) 16 NWLR (PT. 1112) 15, (2008) LPELR ? 2895 (SC) AT 54 (D ? F), B. B APUGO & SONS LTD. V. O. H. M. B. (2016) LPELR ? 40598 (SC) AT 23 (B-E). As rightly stated by the Court below, in determining whether a person has locus standi to sue or prosecute an action, the focus is on the person seeking to be heard by the Court or Tribunal on a complaint or issue brought before the Court. See OJUKWU V. OJUKWU (2008) LPELR ? 2401 (SC) AT 10 ? 11 (G ?A). The purpose of focusing on the person seeking to be heard is to ensure that he has a real interest in the matter and is not just some busy body or meddlesome interloper. See TAIWO V. ADEGBORO & ORS. (2011) LPELR ? 3133 (SC) AT 14 ? 15 (F – A). It is also settled that in determining whether a party has the locus standi to institute an action, the Court or Tribunal will look at the averments in the statement of claim to see whether it discloses sufficient and personal interest of the person in the complaint or issue before the Court. In determining whether a person has locus standi to sue, the chances of success or failure of the action is irrelevant. See TAIWO V. ADEGBORO (SUPRA). PER BOLAJI-YUSUFF, J.C.A.
FACTOR TO DETERMINE WHETHER AN ACTION IS STATUTE BARRED
The law is trite that in determining whether an action is statute barred where the issue is raised in limine the documents the Court should look at are the writ of summons and/or statement of claim or any originating process by which the action is commenced. However, where the defendant has raised a defence of limitation in his defence and the date of accrual of action cannot be ascertained from the writ of summons or statement of claim or the relevant originating process, the Court must allow the issue to go to trial. The issue will then be determined based on the entire pleadings and the evidence before the Court. The Court in that circumstance cannot be confined to the averments in the statement of claim. See ANSA V. NTUK (2009) 9 NWLR (PT. 1147) 557 (CA) AT 18 (B-G). ENEMUO & ANOR. V. EZEONYEKA & ORS. (2016) LPELR ? 40171 (CA) AT 14 (A-E). EZEANI V. N. R. C. (2013) LPELR ? 22065 (CA) AT 21 (D-F). PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT THE EVALUATION AND ASCRIPTION OF PROBATIVE VALUE TO THE EVIDENCE LED IS THE PRIMARY DUTY OF THE TRIAL COURT
The law is trite that evaluation and ascription of probative value to the evidence led is the primary duty of the trial Court that had the advantage of seeing the witnesses testifying and watching their demeanour and other circumstances surrounding the trial. Where the trial Court has adequately performed its duty, the appellate Court will not disturb the finding and conclusion of the Court. However, where the finding and conclusion of the trial Court is manifestly wrong and perverse, the trial Court is entitled to intervene and re-evaluate the evidence in order to reach a just conclusion especially where the re-evaluation of the entire evidence led does not involve credibility of witnesses. See SALAKO V. DOSUNMU (1997) LPELR-2979 (SC) AT 38 (A-D). OKOMALU V. AKINBODE (2006) LPELR-2470 (SC) AT 32-33 (G-C). PER BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Anambra State delivered in suit no. HN/90/2012 on 2/5/2017. The respondents as the plaintiffs at the Court below had claimed the following reliefs:
(a) ?A declaration that the plaintiffs are the successors in title of Late Gabriel Okolo Muoghalu Junior and the persons entitled to succeed and inherit all the properties forming part of his estate.
(b) An order directing the defendants to hand over the Deed of Assignment registered as No. 92 in volume 598 of the office at Enugu now Umuahia in respect of the property situate at and known as No. 22 Market Road, Aba, Abia State otherwise known as plot 6 in block 78 Aba.
(c) Injunction restraining the defendants, their servants, agents, privies from managing, administering, intermeddling and/or superintending the management of any of the properties forming part of the estate of Late Gabriel Okolo Muoghalu of Ndiojukwu Uruagu Nnewi wherever situate.
?(d) An order directing the defendants to render an account
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of all rents and monies realized from the estate of Late Gabriel Okolo Muoghalu and pay same over to the plaintiffs forthwith or within such time as the Court may consider reasonable. N5 Million being the general damages for intermeddling in the administration of estate of Late Gabriel Okolo Muoghalu.
(e) Injunction restraining the defendants, their servants, agents or privies from selling, alienating, letting, leasing and/or in any way or manner disposing off all or any of the properties forming part of the estate of Late Gabriel Okolo Muoghalu Jnr.?
The respondents? case is that late Chief Gabriel Nwokolo Muoghalu (Snr) left a Will wherein he distributed all his real properties at Aba to his 9 male children. In the same Will, he confirmed the fact that he had shared among his male children in the presence of his family members all his lands and buildings at Uruagu Nnewi in accordance with the custom and tradition of Uruagu, Nnewi. He also stated in the Will that his son Joel Chukwura Muoghalu shall keep possession and custody of all the documents of the properties for the first five years after his death and none of the beneficiaries
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shall sell or assign absolutely any of the properties. The property with the buildings at No. 22, Market Road Aba otherwise known as Plot 6 Block 78 Aba was given to Gabriel Okolo Muoghalu, JNR, husband and father of the respondents. Joel Chukwura Muoghalu was the husband and father of the appellants. Gabriel, JNR died before the expiration of five years after the death of their father. According to the respondents, Joel refused to hand over the documents of their father?s property at Aba to them despite repeated demands. Upon the death of the respondents? father, Joel took over the management of the buildings and lands devised to their father and refused to hand over the properties or give an account despite repeated demands. After the death of Joel, the appellants continued to manage the buildings and the lands and also refused to hand over the properties.
The appellants admitted the fact that late Muoghalu Snr left a Will and gave the respondents? father and husband the property at No. 22 Market Road, Aba. They however contended that the Will did not state that Joel should hold the documents of the property for
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five years. They contended that the suit is statute barred having been commenced 13 years after the accrual of the cause of action. The appellants confirmed the devise made in paragraph 19 of the Will relating to the properties at Uruagu but denied that the property at Uruagu being claimed by the respondents was devised to Moghalu JNR. They asserted that Gabriel, Jnr. relinquished all his interest in whatever estate he had before his death to his family because the respondents who are all females deserted him.
After hearing both parties and their final addresses, the Court below in a well-considered judgment, granted all the reliefs sought by the respondents.
The appellants were dissatisfied with the judgment. They filed two notices of appeal. The first one was filed on 3/5/2017. The second one was filed on 1/8/17. The first notice of appeal was withdrawn and struck out on 6/2/10. The appellants relied on the notice filed on 1/8/17 and contained on pages 1 ? 17 of the supplementary record of appeal transmitted to this Court on 24/8/17.
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The appellants? brief of argument was filed on 14/9/17 and deemed as properly filed on 12/3/18. The respondents? brief was filed on 22/11/17. Appellants? reply brief was filed on 6/2/19 and deemed as properly filed and served on the same day. The appellants formulated the following issues for determination:
1. ?Whether the learned trial judge is justified when he refused to determine the cardinal issue of limitation of action raised by the appellants on the premises that the limitation law was not specifically pleaded when same was expressly pleaded in paragraph 8 of the appellants? joint statement of defence and sufficient facts in support of same equally pleaded in paragraph 5 of the appellants? pleadings subsequent to reply.
2. Whether the learned trial judge was right when he held that the evidence of the respondents? witnesses especially PW2 and PW4 were not challenged in cross-examination and that the appellants never denied categorically that his late father, Joel, did not collect the documents of title as directed in the Will, Exhibit D by the testator Gabriel Muoghalu Snr.
3. Whether the learned trial judge was right when he held
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that the respondents who are not executors of the testator?s Will have locus standi to sue in this action in respect of devises in the testator?s Will inclusive of the devises incorporated into the Will by reference with a directive conferred on the executors to ensure its binding effect.
4. Whether the learned trial judge was right when he held that the native law and custom of Uruagu Nnewi pleaded by the respondents as the basis of the sharing of the testator?s lands and properties at Uruagu Nnewi to his male children of 5 different kitchens/wives was not made an issue as to be relevant in determining the conflicting claims of the parties to the same properties.
5. Whether the learned trial judge was right when he placed onus of proof on the appellants to prove ?DEFENCE OF CONFESSION AND AVOIDANCE? pleaded by the appellants even when the respondents did not file any reply challenging this defence.
?6. Whether the learned trial judge was justified when he held that he is satisfied that the respondents discharged the burden placed on them by identifying only portions of lands granted to their
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father, Gabriel Muoghalu Jnr., without the need of identifying the total area of land shared to the nine male beneficiaries via a composite plan having regard to the conflicting claim of ownership by the same parties on the same properties.
7. Whether the Court properly evaluated evidence placed before it and whether the findings of facts arrived thereto are not perverse resulting to miscarriage of justice as it relates to the subject matter of this action.?
The respondents? counsel formulated the following issues for determination:
1. ?Whether on the facts and circumstances of the case, the decision of the Court below that the action is not statue barred is correct? Ground 1.
2. Whether the Court below was right to hold that the plaintiffs have the locus standi to sue and maintain the action? Ground 2.
3. Whether from the pleadings and evidence adduced at the trial, the Court below was right to hold that Late Joel Muoghalu had the title documents of the property situate at No. 22 Market Road, Aba devised to Late Gabriel Okolo Muoghalu Jnr. (husband and father of the plaintiffs)? Ground 3.
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4. Whether on the facts and circumstances of the case, the Court below was right to hold that parties did not join issues on the native law and custom of Uruagu Nnewi with respect to the sharing and grant of houses and lands by Gabriel Muoghalu Snr., at Ndiojukwu Uruagu Nnewi and that it was not relevant and fundamental to the success or failure of the plaintiffs claims in the suit?
5. Whether on the facts and circumstances of this case the Court below was right to hold that onus of proof was on the defendants who claim to be the owners of the lands Muoghalu Jnr. allegedly relinquished and how the 2nd defendant acquired the lands he surveyed in Exhibit DF?
6. Whether the Court below was right to hold that the identity of the lands in dispute was not in dispute between the parties and thus it was not necessary to file a composite plan by the plaintiffs, if answered in the negative whose duty was it to file a composite plan in the instant case?
7. Whether on the facts and circumstances of this case, the Court was right to hold as it did that the plaintiffs proved their case against the defendants on the preponderance of evidence as required by law
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I have compared the issues formulated by both parties with the grounds of appeal. The issues thrown up for determination in this appeal are:
(1) ?Whether the Court below was right when it held that the Limitation Law ought to have been specifically pleaded.
(2) Whether the Court below was right when it held that the respondents had the locus standi to institute the action.
(3) Whether the judgment is against the weight of the evidence led.
On issue 1, the appellants? counsel submitted that the appellants are not required to plead the statute book of Anambra State in order to validly raise a Limitation Law. All that is necessary for the defence to plead are facts that will enable the Court to hold that the action is statute barred. He referred to OJIOGU V. OJIOGU (2010) LPELR ? 2377 (SC) AT 23-24. P. N. UDOH TRD. CO. LTD. V. ABERE (2001) 11 NWLR (PT. 723) 114 AT 133 -134 (H-A). Counsel further submitted that the appellants pleaded sufficient facts in paragraph 8 of the statement of defence and paragraph 5 of the appellants? pleadings subsequent to reply to statement of defence.
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He further submitted that the respondents pleaded the date the cause of action arose in paragraphs 1 and 14 of their statement of claim where they pleaded that their father died in 1995 whereas the suit was instituted in 2013, a period of about 18 years after the accrual of the cause of action and the action is caught by the provisions of Sections 22 (2) and 23(2) of the Actions Law of Anambra State, 1991.
In response to the above submissions of the appellants, the respondents? counsel submitted that the case of P. N. UDOH TRD, CO. LTD. V. ABERE(SUPRA) relied on by the appellant supports the decision of the Court below that the appellants did not plead sufficient facts to enable the Court hold that the action is statute barred. He argued that the cause of action will accrue in respect of the release of documents of the property at Aba after a demand and refusal to release and neither the appellants nor the respondents pleaded the date on which a demand was made and Joel refused to release the documents. He referred to paragraph 11 of the Statement of defence where the appellants pleaded that the respondents never made any demand whether oral or
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written for the release of the documents. He submitted that the implication of that pleading is that the cause of action has not arisen.
Counsel submitted that the land situate at Nnewi is subject to customary law and therefore not subject to Limitation Law. He referred to Section 18 of the Actions Law, Cap. 3, Revised Laws of Anambra State, 1991. OYEBANJI V. LAWANSON (2008) 35 NSQOR 647. Counsel further argued that late Joel was a trustee of the title documents sought to be recovered from the appellants as his legal representatives, therefore the action is not subject to Limitation Law. He referred to Section 35 (1) (b) of Actions Law of Anambra State (supra). OJEME V OJEME (2000) 13 NWLR (PT. 685) 600. He finally submitted that it is not correct as argued by the appellants that the Court below did not determine the issue of limitation of action.
In his reply to the respondents? brief, the appellants? counsel submitted that the appellants have no obligation to plead the time or date of accrual of action as the Court looks at only the writ of summons and statement of claim in determining whether
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an action is statute barred. He referred to WILLIAMS V. WILLIAMS (2008) 10 NWLR (PT. 1095) 364 AT 383 (A-B). Counsel contended that the respondents not having filed a respondent?s notice to contend that the judgment is correct and ought to be sustained on other grounds, the fresh points being raised by the respondents should be discountenance by the Court. He referred to BOB-MANUEL V. BRIGGS (2003) 5 NWLR (PT. 813) 323 (D-E).
RESOLUTION:
Order 15 Rule 7 of the High Court (Civil Procedure) Rules of Anambra State, 2006 on which the Court below relied to hold that the Limitation Law was not specifically pleaded nor which of the Limitation Laws that statute barred the action provides that:
(1) ?All grounds of defence or reply which make an action not maintainable or if not raised will take the opposite party by surprise or raise issues not arising out of the preceding pleadings shall be specifically pleaded.
(2) Where a party raises any ground which makes a transaction void or voidable or such matter as fraud, Limitation Law, release, payment, performance, facts, showing insufficiency in contract or
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illegality either by any enactment or by common law, he shall specifically plead same.?
The position of the Court below that the specific limitation law which barred the action should have been pleaded accords with the provisions of the rules of Court. However, the position of the Supreme Court is that the issue of Limitation Law transcends the High Court Rules. See AJAYI V. ADEBIYI & ORS. (2012) LPELR – 7811 (SC) AT 49 (B ? G) where the Court per Adekeye J. S.C held that:
?Limitation Law and locus standi are both threshold issues which can be raised anytime or for the first time in the Court of Appeal or in the Supreme Court. It is not limited to being raised as a special defence and pleading them specifically as required by the Rules of Court under Order 22 Rule 2 of the Lagos State High Court Civil Procedure Law. It transcends any High Court Rules. It can be raised by preliminary objection at any stage of the proceedings before any Court by any of the parties or even suo motu by the Court. It is therefore noteworthy that an application or preliminary objection seeking an order to strike out a suit for
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being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that the issue of jurisdiction can be raised at any time.?
See alsoANYANWU V. MBARA & ANOR.(1992) NWLR (PT. 242) 386, (1992) LPELR ? 516 (SC) AT 13-14 (A-C). OJIOGU V. OJIOGU (SUPRA). KANJAL V. IFOP (2013) LPELR ? 22158 (CA) AT 41-46 (A-A). OYEBAMJI & ORS. V. LAWANSON & ORS. (SUPRA). The extant position of the law is that where a party raises a defence that an action is statute barred in his statement of defence as in the instant appeal, the specific statute and relevant sections of the statute of limitation on which he relies need not be pleaded. See SHAGARI QUARTERS DEV. ASS. ARGUNGU & ORS. V. HASSAN & ORS. (2014) LPELR ? 22319 (CA) AT 18 (A-B). G. CAPPA LTD V. DAILY TIMES OF NIGERIA LTD. (2013) LPELR ? 22028 (CA) AT 50-51 (C-B). The refusal of the Court below to consider the defence of limitation of action on the ground that the
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Limitation Law on which the appellants relied was not specifically pleaded is erroneous. Issue 1 is resolved in favour of the appellants. Having failed to consider the issue of whether the action is statute barred, this Court will invoke its power under Section 15 of the Court of Appeal to consider and determine the issue in the interest of justice. See OJOMO & ORS. V. FROZEN FOODS ING. LTD & ORS (2009) LPELR ? 8926 (CA) AT 35 (C-D).
The appellants relied on Section 23(2) of the Actions Law of Anambra State (supra) in support of their contention that the respondents? action is statute barred. That section of the law provides that:
?Where any person brings an action to recover any land of a deceased person, whether under a will or on intestacy, and the deceased person was on the date of his death in possession of the land and was the last person entitled to the land to be in possession thereof, the right of action shall be deemed to have accrued on the date of his death.?
From the entire pleadings of the respondents in the statement of claim on pages 3-5 of the record of appeal, it is clear that
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the appellants? claim consists of two segments. The First is release of the document of the property at Aba. The second one is the recovery of the property at Uruagu and accounts of the rents collected there from.
Both parties are idem that the basis of the appellants? claim is the Will of their grandfather admitted as Exhibit D. None of the parties is contesting the validity of the Will. Clause 12 of the Will states that:
?I HEREBY direct that my son, JOEL CHUKWURA MUOGHALU, shall keep possession and custody of the respective Leases of All plots hereinabove devised for the first 5 years (Five YEARS) of my death and that within that period of FIVE YEARS none of the beneficiaries shall sell or assign absolutely any of the plots or properties.?
It is clear from the wordings of clause 12 of the Will that Joel was to hold the document of the Aba property devised to Moghalu, JNR for five years after the death of Moghalu SNR. The law is trite that in determining whether an action is statute barred where the issue is raised in limine the documents the Court should look at are the writ of
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summons and/or statement of claim or any originating process by which the action is commenced. However, where the defendant has raised a defence of limitation in his defence and the date of accrual of action cannot be ascertained from the writ of summons or statement of claim or the relevant originating process, the Court must allow the issue to go to trial. The issue will then be determined based on the entire pleadings and the evidence before the Court. The Court in that circumstance cannot be confined to the averments in the statement of claim. See ANSA V. NTUK (2009) 9 NWLR (PT. 1147) 557 (CA) AT 18 (B-G). ENEMUO & ANOR. V. EZEONYEKA & ORS. (2016) LPELR ? 40171 (CA) AT 14 (A-E). EZEANI V. N. R. C. (2013) LPELR ? 22065 (CA) AT 21 (D-F).
In the instant case, the respondents averred in paragraph 4 of their statement of claim that Moghalu SNR. died in 1994. That averment was admitted in paragraph 6 of the statement of defence. The appellants raised the defence of limitation in paragraph 8 of their statement of defence. The averment in that paragraph reads:
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8. At any rate, in further response to paragraph 9 of the Statement of Claim, the defendants state that having regard to the fact that Late Chief Gabriel Moghalu died in 1994 and having regard to the fact that five (5) years thereafter stated in paragraph 12 of the said Will and Testament culminate to the year 1999, the defendants shall contend that this suit commenced over 13 years after the accrual of the cause of action is statute barred. The defendants specifically plead Limitation Law and shall further rely on the equitable doctrine of laches and acquiescence or standing by during trial. The defendants shall further contend that by the facts pleaded in this Statement of Claim, the Plaintiffs lacks the Locus Standi even to commence this action.?
There is no reply to paragraph 8 of the statement of defence in the respondents? reply to the statement of defence. First, where a plaintiff fails to file a reply to a material averment in statement of defence which raised a new issue of fact not arising from the statement of claim, he is deemed to have admitted the averment. See TURAKI & ANOR. V. SANKARA &
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ORS. (2011) LPELR ? 9203 (CA) AT 42 (A-D), SHEKA V. BASHARI (2013) LPELR ? 21403 (CA) AT 26 (E-G), Phillips V. EBA ODAN COMMERCIAL & IND. COY. (2012) LPELR ? 9718 (SC) AT 25-26. A reply to paragraph 8 of the appellants? defence was essential in this case because the issue of limitation pleaded therein is a new issue which did not arise from the statement of claim. Secondly, PW1 and PW3 in their evidence under cross-examination on pages 264 and 273 of the record of appeal confirmed that their grandfather died in 1994 and that the five years stipulated in the Will expired in 1999. PW3 said they had been demanding the document from DW1?s father Joel since their father died but he refused to release it. The Court below considered the pleadings and the evidence led. At page 311 of the record of appeal the Court held that:
?The defendant in pleading that Muoghalu Snr. died in 1994 and that the five years in their words culminated in 1999 and therefore that the suit was commenced 13 years after the accrual, never pleaded the year the cause of action accrued. It was only at the
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cross-examination of PW3 that she was asked and she answered:
?Five years after the death of the testator will be 1999. I did not file any suit against Joel being my uncle in 1999 and 2011 because Joel was my uncle….?
It was in evidence which was elicited from facts pleaded. The limitation law was therefore not specifically pleaded nor which of the limitation laws that statute barred the action. It is not for this Court to speculate.
From the evidence before me, I hold that Exhibit D which was the Will of Late Muoghalu Snr directed in paragraph 12 that on his demise, Joel Muoghalu one of his sons (and also one of executors) should take custody of the documents of title to the various properties bequeathed to his sons and shall hold same for five years. I hold that late Joel Muoghalu took possession of the title documents including those relating to No. 22 Market Road, Aba bequeathed to Late Gabriel Muoghalu Jnr and that the defendants are in custody of the said documents.
The defendant never denied that their father Joel held the documents for five years as directed nor denied PW4?s unchallenged evidence that Joel, their father handed over his own documents to him.?
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The finding of the Court below is erroneous on both facts and law. The appellants specifically pleaded the year of accrual of action to be 1999, that is the purport of the averment in paragraph 8 of the statement of defence reproduced earlier in this judgment. Secondly, the evidence of PW3 supports the averment in paragraph 8 of the statement of defence. From the pleadings and the evidence led, it was clearly established that the cause of action accrued in 1999.
The respondent?s counsel contended that by virtue of Section 35(1)(b) of the Actions Law (supra), a trust property is not subject to the Limitation Law. Section 35(1) and (2) of the Law provides that:
(1) No period of limitation prescribed by this Law shall apply to an action by a beneficiary under a trust, being an action-
(a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or
(b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.
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(2) Subject as aforesaid, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Law, shall not be brought after the expiration of six years from the date on which the right of action accrued:
Provided that the right of action shall not be deemed to have accrued to any beneficiary entitled to a future interest in the trust property, until the interest fell into possession.?
I do not agree with the respondents? counsel that the provisions of Section 35(1) (b) applies to the claim for the release of the document. That provision of the law applies to a trust property or proceeds accruable from the property. The claim for the release of the document is separate and distinct from a claim to recover the property to which the document relates. The claim for the release of the document after the expiration of the five years stipulated in the Will is an action in conversion. InH.S. ENGR. LTD. V. S.A. YAKUBU (NIG.) LTD. (2009) 10 NWLR. (PT.1149) 416, (2009) LPELR-1363 (SC) AT 23-24
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(A-A) the Supreme Court speaking through TABBAI, JSC explained what amounts to an action in conversion as follows:
?The present action is one of conversion by detention, the defendant/appellant having taken possession of the chattels for repairs under an agreement. The defendant/appellant?s detention of the chattels becomes conversion only if it is adverse to or inconsistent with the rights of the owners/respondent or other person entitled to their possession. To be liable of conversion therefore the appellant must be shown to have demonstrated an intention to detain or withhold the equipment in defiance of the plaintiff/respondent. This is consistent with the majority opinion in the English case of CLYTON V. LE ROY (1911) 2K. B. 1031 AT 1052. See also ABUBAKAR YUSUF V ALHAJI B. A. MOBOLAJI (1999) 12 NWLR (PART. 631) 374 AT 387; DR OLATUNBOSUN ODEJIDE V MADAM OLAIDE FAGBO (2004) 9 N.W.L.R (PART 771) 157 AT 201. The usual mode of establishing that a detention of chattels by a defendant is adverse to the rights of the owner or other person entitled to their
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possession and therefore constitutes the tort of conversion is to prove that the plaintiff demanded the delivery of the chattels and that the defendant refused or neglected to comply with the demand. Thus demand by the plaintiff and refusal by the defendant are the essential ingredients of conversion. SeeCAPITAL FINANCE CO LTD V BRAY (1964) 1 W.L.R. 323 AT 329.?
The refusal of late Joel to release the document after the expiration of the five years stipulated in the Will amounts to conversion of the document. It is the provision of Section 21(1) of the Actions Law that is applicable to the claim for the release of the document in respect of the property at Aba. Section 21(1) of the Actions Law provides that:
21(1)?Where any cause of action in respect of the conversion or wrongful detention of a chattel has accrued to any person and, before he recovers possession of the chattel, a further conversion or wrongful detention thereof takes place, no action shall be brought in respect of the further conversion or detention after the expiration of six years from the accrual of the cause of action in respect of the original conversion or detention.?
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The claim for the release of the document of Aba property is an action that should have been brought within six years after the expiration of the five years stipulated in the Will and refusal by DW1?s father, Joel to release the document. The cause of action having accrued in 1999, the action brought after 14 years of the accrual of the cause of action is statute barred. Accordingly, relief (b) in paragraph 24 of the respondents? claim is hereby dismissed.
The second segment of the respondents? claim relates to the property at Uruagu. From the pleadings and the evidence led particularly paragraph 19 of the Will, exhibit D, the property is subject to customary law. Section 18 of the Actions Law clearly provides that:
?The provision as regards limitation of action provided in this Law shall have no application where a person bringing an action to recover land, or the person through whom he claims, derived his title to such land solely under customary law.?
See MAJEKODUNMI & ORS. ABINA (2002) 3 NWLR (PT. 755) 720, (2002) LPELR ?
25
1826 (SC) AT 17 (C-D). IBRAHIM & ORS. V. YUSUF (2016) LPELR ? 40259 (CA) AT 17-18 (D-F). The property at Uruagu Nnewi being subject to customary law, the claim for its recovery is not caught by the Limitation Law. In other words, Actions Law of Anambra State is not applicable to a claim for recovery of land under native law and custom.
On issue 2, the appellants? counsel submitted that the beneficiaries of a Will cannot sue in respect of any directive or devise in the will when probate has been granted to the executors unless there is evidence of vesting assent by the Executors on the beneficiaries. He referred toUNOKA V. AGILI (2007) 11 NWLR (PT. 1044) 122 AT 143 (B-E). He further submitted that any directive as to the handing over of the documents and properties contained in clauses 12 and 19 of the Will is a directive to the executors of the Will in whom the properties are vested from the date of the grant of the probate. He referred toOGUNRO V. OGEDENGBE (1960) SCNLR 286 AT 288, UGU V. TABI (1997) 7 NWLR (PT. 513) AT 385 (B-C). Counsel submitted that there is no evidence before the Court pointing to
26
the fact that the executors of the Will have performed any or all of their duties as contained in the Will before the demise of Muoghalu JNR as to entitle the respondents to sue directly on his estate which remains inchoate until a deed of assent is duly executed by the executors. He referred to JETOBOR V. AKPOVETAN (1966) NMLR 188 AT 191. He finally submitted that where the executor failed to take step to enforce the devises of the testator in the Will, the beneficiaries of the Will or their personal representatives as in the instant case should rather sue the executors. He referred to AGUOCHA V. AGUOCHA (1986) NWLR (PT. 37) 566.
In his response to the above submissions, the respondents? counsel submitted that it is not in dispute that neither the appellants nor the respondents were granted Letters of Administration of the Estate of Muoghalu JNR. He argued that notwithstanding the non-grant of Letters of Administration, the respondents have the right to sue the appellants who are alleged to be executors de son tort. He referred to Section 74 of the Administration and Succession (Estate of Deceased Persons Law) of Anambra
27
State. NWINYI & ORS. V. OKONKWO (2013) LPELR -21216 CA, UDENSI V. MOGBO (1976) 7 NSC. 1. Counsel submitted that it is not necessary for the respondents to prove that the executors of the Will of Muoghalu SNR., have executed a deed of assent to the property at Uruagu given to Muoghalu Jnr., as a gift inter vivos in accordance with Uruagu Nnewi custom and tradition before they can institute an action. He referred to OYEBAMJI V. LAWANSON (SUPRA).
He urged the Court to uphold the decision of the Court below that the respondents have the locus standi to sue the respondents who are undoubtedly executors de son tort.
RESOLUTION:
Locus standi is a legal concept which has been defined and explained in a plethora of authorities. It is defined as the legal capacity of a person to institute proceedings in a Court of law or Tribunal to seek redress for his grievance or enforce his right. For a person to have the locus standi or legal capacity to sue, he must show that he has sufficient or special interest in the matter and that his interest is affected or will be affected by the litigation. See EMEZI V. OSUAGWU
28
& ORS (2005) LPELR -1130 (SC) AT 20 ? 21, (2005) 12 NWLR (PT. 939) 340, PAM V. MOHAMMED (2008) 16 NWLR (PT. 1112) 15, (2008) LPELR ? 2895 (SC) AT 54 (D ? F), B. B APUGO & SONS LTD. V. O. H. M. B. (2016) LPELR ? 40598 (SC) AT 23 (B-E).
As rightly stated by the Court below, in determining whether a person has locus standi to sue or prosecute an action, the focus is on the person seeking to be heard by the Court or Tribunal on a complaint or issue brought before the Court. See OJUKWU V. OJUKWU (2008) LPELR ? 2401 (SC) AT 10 ? 11 (G ?A). The purpose of focusing on the person seeking to be heard is to ensure that he has a real interest in the matter and is not just some busy body or meddlesome interloper. See TAIWO V. ADEGBORO & ORS. (2011) LPELR ? 3133 (SC) AT 14 ? 15 (F – A). It is also settled that in determining whether a party has the locus standi to institute an action, the Court or Tribunal will look at the averments in the statement of claim to see whether it discloses sufficient and personal interest of the person in the complaint or issue before the Court.
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In determining whether a person has locus standi to sue, the chances of success or failure of the action is irrelevant. See TAIWO V. ADEGBORO (SUPRA). The respondents in paragraph 1, 2, 18-23 of the statement of claim averred the following facts:
1. The 1st plaintiff is the widow of Gabriel Okolo Muoghalu Jnr. of Ndiojukwu Uruagu Nnewi who died intestate in 1995.
2. The 2nd ? 5th plaintiffs are now married while the 6th ? 7th plaintiffs are not yet married.
18. Late Gabriel Okolo Muoghalu Jnr. married the 1st plaintiff in accordance with the Marriage Act and ensuing marriage was monogamous till the end.
19. On the death of Gabriel Okolo Muoghalu the plaintiffs inherited his estate which included the property in Aba, Abia State, his compound at Ndiojukwu Uruage Nnewi and undeveloped pieces or parcels of land.
20. The defendants have refused to surrender the estate of late Gabriel Okolo Muoghalu Jnr. to the plaintiffs and are now claiming the same as their own. They have without the consent of the plaintiffs rented out all the rooms in the story building situate at Ndiojukwu Uruagu Nnewi granted
30
to Gabriel Okolo Muoghalu Jnr to tenants who have been paying the rent to them.
21. The plaintiffs no longer have access to their husband/father?s compound or building whenever they are in Nnewi as the defendants are now claiming the same as their own.
22. The defendants have not been granted letters of administration of the estate of late Gabriel Okolo Muoghalu Jnr.
23. The defendants will not stop their unlawful acts unless the Court intervened.?
The Court below considered the above averments and the principles of law guiding determination of locus standi. The Court at pages 304- 305 of the record of appeal held that:
?A holistic reading of the statement of claim showed that the plaintiffs are the beneficiaries of the estate of Muoghalu Jnr who died intestate and not beneficiaries of the Estate of Muoghalu (Snr) who died testate. Also from the pleadings, Muoghalu Jnr. Died after the death of Muoghalu (Snr) and did not make a Will.
It is the law that a person who has not been lawfully appointed an executor or administrator of an estate may by reason of his intrusion upon the affairs of the estate be
31
treated for some purpose as having assumed the executorship and in law, such a person is called an executor de son sort. The slightest interference with the property of the deceased is sufficient to create such liability and such a person (executor de son tort) is liable to be sued by the rightful representative of the estate. See EDOZIEN VS. AMADI (1962) 1 SCNLR 1: JONES VS. MARTINS (1943) 17 NLR 9; AMODU VS. OBAYOMI (1992) 5 NWLR (PT 242) 503 CA.
The administration and succession of (Estate of Deceased persons) Law of Anambra State provides in Sections 73(2) and (3) as follows:
?73(2) the personal representatives for the time being of a deceased person shall be deemed in law to be his heirs and assigns within the meaning of trusts and powers.?
?73(3) the personal representatives shall be the representatives of the deceased in regard to his real estate to which he was entitled for an interest not ceasing on his death as well as in regard to his personal estate.?
Form the provisions of the above law, the plaintiffs are deemed in law to be the heirs and assigns of Muoghalu Jnr and his representatives with regard to his
32
real estate to which he was entitled for an interest not ceasing on his death as well as his personal estate.
The plaintiffs as surviving widow and children of Muoghalu Jnr who died intestate are entitled and have sufficient interest in the estate of their late father and husband to sue the defendants who from the claim before me are alleged to have been intermeddling with the said estate.?
The reasoning and the finding of the Court below is sound and accords with the law. The contention of the appellants? counsel that the respondents have no locus standi to sue because a deed of assent has not been executed by the executors of the Will is a clear misconception of the respondents? case. The claim of the respondent is for the release of the document of the property at Aba as directed by the testator in the Will. The release of the document does not require a deed of assent. The directive automatically takes effect upon the expiration of five years after the death of the testator. Moghalu Jnr. Having died before the expiration of five years, the respondents being his widow and children and
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beneficiaries of his estate are entitled to sue for the release of the document by virtue of Section 86(1) of the Administration and Succession (Estate of Deceased Persons) Law of Anambra State 1991 which provides that :
86(1) ?Subject to the provisions of this section, all cause of action subsisting against or vested in a person shall, on his death after the commencement of this Law, survive against, or for the benefit as the case may be, of his estate.?
Section 86 (6) also provides that:
?The rights conferred by this section for the benefit of the estates of deceased persons shall in addition to, and not in derogation of, any rights conferred on the dependents of deceased persons by any written law applicable in the State, and so much of this Law as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action not expressly excepted from the operation of Subsection (1).?
I am of the firm view that by virtue of clause 12 of the Will, ownership of the document became vested in the respondent and they are entitled to sue to recover
34
the document. Assuming that there is need for a deed of assent before the document can be released to Moghalu Jnr., upon his death intestate, the respondents as heirs and beneficiaries are entitled to sue to protect their equitable interest in the estate. See NWINYI & ORS V. OKONKWO (SUPRA)
Clause 19 of the Will merely confirmed the distribution of Moghalu Snr?s property at Uruagu in his lifetime. The property at Uruagu was not devised by the Will. It was a gift or distribution inter vivos under customary law and in the presence of witnesses. The question of execution of a deed of assent to vest the property in late Moghalu Jnr. before it can be inherited by his children does not arise. The land at Uruagu does not form part of the estate of Moghalu Snr. covered by the Will. See JOVINCO NIG. LTD & ANOR V. IBEOZIMAKO (2014) LPELR ? 23599 (CA) AT 25 ? 26 (G ?E), ORIDO V. AKINLOLU (2012) LPELR ? 7887 (CA) AT 21 (A ? G).
For the above reasons, issues 2 is resolved against the appellant.
35
On issue 3, the appellants? counsel submitted that the Court below failed to properly evaluate the evidence placed before it and that failure resulted in findings which are manifestly perverse and occasioned a miscarriage of justice. He referred to the findings in respect of the pleadings, the failure to file composite plans and the conclusion of the Court on DW1?s evidence. He submitted that the appellants? pleadings in paragraph 7 of the statement of defence and paragraphs 13, 14 and 18 of the appellants? pleadings subsequent to reply that Moghalu Jnr. relinquished all his interest in the estate to Ezemazi family (not appellants? family) were not challenged or controverted and the appellants have no burden to prove what was relinquished to Ezemazi family. In respect of the land at Uruagu, counsel submitted that the law is trite that where a party relies on native law and custom as the basis of his interest in property, the facts of such native law and custom must be pleaded and established in evidence. He further submitted that notwithstanding that the parties joined issues on the native law and custom under which the land at Uruagu was shared, the Court below held that from the pleadings, the
36
custom under which Muoghalu Snr granted lands to his children was not an issue between the parties but later turned round to place the burden of proving the same custom on the appellants.
On the respondent?s claim for the release of the document of Aba property, counsel submitted that there is no basis for the order of the Court below that the appellants should surrender the document of Aba property because there is no proof at all of same being in possession of the appellants. He further submitted that there is no evidence that late Joel received the document or that the executors have acted to enforce the directive in clause 12 of the Will.
?
In response to the above submissions, the respondents? counsel submitted that Muoghalu Snr. was sure that the document would be in possession of Joel or that he had access to them and accordingly directed him to hold the documents for five years after his death before releasing them to the beneficiaries. He referred to the evidence of PW4 that Joel gave him his own document and submitted that the fact PW4 said he could not remember the particular person who handed over the documents to Late Joel does not render the evidence incredible.
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On the issue of native law and custom, he submitted that the respondents pleaded that Muoghalu Snr. made a gift inter vivos in paragraphs 12 of the statement of claim. It was the appellants who in paragraph 12 of their statement of defence averred that Moghalu Snr. expressly stated that the sharing of his land in the presence of his family members was strictly in accordance with the custom and tradition of Uruagu. He submitted that the conclusion of the Court below that the respondents did not need to plead the facts of the custom is the correct interpretation of the pleadings.
In his reply, the appellants? counsel submitted that the respondents pleaded in paragraphs 12 and 16 of the statement of Claim that the sharing of the property at Uruagu to the beneficiaries was in accordance with customary law.
RESOLUTION:
Notwithstanding the conclusion that reliefs (b) in the statement of claim is statute barred, I will in the resolution of this issue consider the claim on the merit in line with the authorities of NOSPETCO OIL & GAS LTD V. OLORUNNIMBE & ORS (2011) LPELR-8933 (CA) AT 63 (F-G).
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KOLADE & ANOR. V. AKINOSI & ORS (2014) LPELR- 22936 (CA) AT 31-32 (C-D).
The law is trite that evaluation and ascription of probative value to the evidence led is the primary duty of the trial Court that had the advantage of seeing the witnesses testifying and watching their demeanour and other circumstances surrounding the trial. Where the trial Court has adequately performed its duty, the appellate Court will not disturb the finding and conclusion of the Court. However, where the finding and conclusion of the trial Court is manifestly wrong and perverse, the trial Court is entitled to intervene and re-evaluate the evidence in order to reach a just conclusion especially where the re-evaluation of the entire evidence led does not involve credibility of witnesses. See SALAKO V. DOSUNMU (1997) LPELR-2979 (SC) AT 38 (A-D). OKOMALU V. AKINBODE (2006) LPELR-2470 (SC) AT 32-33 (G-C). The Court below considered the pleadings of both parties and the evidence led. The Court at page 311 of the record held that:
?From the evidence before me, I hold that Exhibit D which was the Will of Late Muoghalu Snr directed in paragraph 12 that on
39
his demise, Joel Muoghalu one of his sons (and also one of executors) should take custody of the documents of title to the various properties bequeathed to his sons and shall hold same for five years. I hold that late Joel Muoghalu took possession of the title documents including those relating to No. 22 Market Road, Aba bequeathed to Late Gabriel Muoghalu Jnr.
I have perused the entire evidence on record. I agree totally with the above finding of the Court below. It is amply supported by the evidence of PW4 who is the sole surviving executor of the Will. At least, it can be presumed that since Joel handed over the documents of the properties at Aba devised to the various beneficiaries to them after five years of the death of Muoghalu Snr. particularly, PW4, he took possession and custody of the documents as directed in the Will. However, that presumption cannot be extended to the appellants. It cannot be presumed that since the appellants are the widow and son of Late Joel, they are in custody of the document. Therefore, I do not agree with the finding of the Court that that the defendants are in custody of
40
the said documents. The defendants never denied that their father Joel held the documents for five years as directed nor denied PW4?s unchallenged evidence that Joel, their father handed over his own documents to him.? There must be cogent and credible evidence to establish the fact the appellants are in custody of the documents. There is no such evidence on record. Without such evidence before the Court, any conclusion that they took over or are in custody of the document is purely speculative and conjecture. It is settled law that no Court is allowed to act on speculation or mere conjecture. It is dangerous and unfair to do so. Any finding or judgment based on speculation and or mere conjecture not on facts established by admissible and credible evidence cannot be allowed to stand. See U.T.B. V. OZOEMENA (2007) LPELR 3414 (SC) AT 47 (D-E). DAKOUR & ORS V. LAGOS STATE URBAN RENEWAL BOARD & ORS(2015) LPELR-24806 (2006) 6 NWLR (PT.975) 100, (2006) LPELR-1441 (SC) AT 18 (C-E), AGIP (NIG) LTD V. AP INT?Ll LTD. (2010)LPELR- 250 (SC) AT 66-67 (F-A), FCDA & ANOR. V. MTN NIG. COMM. LTD & ANOR
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(2016) LPELR-41248 (CA) AT 14-15 (E-B). For these reasons, relief (b) fails and it is hereby dismissed.
I stated earlier in this judgment that both parties are ad idem on the fact that late Moghalu Snr. left a Will and that none of the parties including the appellants are challenging the validity of the Will. Therefore, parties are bound by the contents of that Will. Based on that Will, the fact that Moghalu Snr. shared his lands and buildings at Uruagu according to Uruagu Nnewi custom and tradition is incontestable. From the entire evidence on record, there is no controversy on the fact that Moghalu Jnr., was the eldest son of Moghalu Snr. DW1 confirmed that fact. DW1 also confirmed that Moghalu Snr. shared his properties at Uruagu Nnewi to his children. The issue in controversy is not whether or not Moghalu Jnr was given landed property as the first son. The issue is whether the property in dispute was the one shared to him by his father. PW1, Louisa Muoghalu, PW2 Amobi Moghalu and PW4 confirmed that the storey building from which PW1 and her husband, Charles Moghalu were ejected by the appellants belong to Moghalu Jnr and he was in
42
possession of the building and his other lands until he died in 1995. While the respondents called members of Moghalu family who testified and confirmed the claim of the respondents that the property in dispute belong to Moghalu Jnr, the respondents did not call any other person to testify in support of their claim that the property was shared to DW1?s father. The attempt of the appellants to cling to the issue of customary law was rightly rejected by the Court below. On the balance of probability, the respondents established their claim to the property and the Court below rightly found for them.
The appellants alleged that Moghalu Jnr renounced all his interests to Ezeamazi family in his lifetime. None of the members of the family was called to testify to the bogus claim. It is clear on the entire pleadings and evidence on record that the appellants feel entitled to grab the inheritance of the respondents because they are all females. DW1 confirmed the fact that he ejected the family of Charles Muoghalu from the property and he has rented out the building to tenants. The appellants did not plead or give evidence of what entitles them to take
43
possession of Moghalu Jnr?s property which he allegedly renounced to Ezeamazi family. The appellants are liable to render an account of all the rents they have collected from the properties of late Moghalu Jnr. The persons entitled to inherit his properties is his wife and children and no one else irrespective of their gender.
On the entire evidence on record, I agree with the Court below that there is no evidence that the appellants intermeddled with the property at No. 22, Market Road, Aba. The Court below was right in granting the reliefs sought except relief b. Therefore the order compelling the appellants to handover the deed of assignment registered as 92/92/598 in the office at Enugu now Umuahia in respect of the property at Aba is hereby set aside. The order reliefs granted are hereby confirmed. The appeal succeeds in part. Parties shall bear their own costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have read before now the Leading Judgment of my Learned brother M.O. Bolaji-Yusuff, JCA and am in total agreement with his reasoning and conclusions on all the issues so determined that this Appeal
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partly succeeds particularly on the issues of statute-barred or limitation and that the Order of the Court compelling the Appellants to hand over the Deed of assignment registered as NO. 92/92/598 in the office at Enugu now Umuahia Land Registry in respect of the property at Aba is hereby set aside. I also abide by the Order as to costs.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, MISTURA OMODERE BOLAJI-YUSUFF, JCA just delivered. I agree with the reasoning and conclusion contained therein.
For the detailed reasons adumbrated in the lead judgment, I too, therefore, hold that this appeal succeeds in part. The trial Court was right to have granted the reliefs sought save for relief “B”. I too, set aside the order compelling the Appellants to handover the deed of assignment registered as 92/92/598 in the office at Enugu now Umuahia in respect of the property at Aba. The other reliefs are hereby confirmed. I abide myself by the consequential orders.
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Appearances:
M.U. Uzoma with him, A.C. ChukwuFor Appellant(s)
Chief G.O. Osuigwe with him, Chief E.C. ChikaeloFor Respondent(s)
Appearances
M.U. Uzoma with him, A.C. ChukwuFor Appellant
AND
Chief G.O. Osuigwe with him, Chief E.C. ChikaeloFor Respondent