CASE SUMMARY OF:
Richard Nwanaga Esonu v. Okechukwu Esonu & Ors (2017) - CA
- Power of attorney;
RICHARD NWANAGA ESONU
1. OKECHUKWU ESONU;
2. KENNETH UBANI;
3. BRIGHT UBANI;
4. DAVID EKPO
Court of Appeal
LEAD JUDGEMENT DELIVERED BY:
Tunde Oyebanji Awotoye, J.C.A.
* FOR THE APPELLANT
- Laurel C. S. Kalunta;
* FOR THE RESPONDENT
- Daniel Anya;
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
This is the judgment in respect of the appeal lodged by the appellant against the judgment of Abia State High Court sitting at Umuahia in Suit No: HU/222/2009 delivered on 14th day of March, 2012. The appellant was the plaintiff at the lower Court. He instituted an action against the defendants claiming as per Paragraph 28 of his statement of claim thus: "Wherefore the plaintiff claims against the defendants are as follows:- 1) A declaration that the plaintiff is entitled to the statutory right of occupancy to the piece or parcel of land known as and called AMAEKPO land situate at Umuaguanya Umuoriehi Isingwu Umuahia in Umuahia North Local Government Area within the Jurisdiction of this Honourable Court at the survey plan filed with the statement of claim. 2) Perpetual Injunction restraining all the defendants, their agents, privies and workmen from entering into the land without the approval of the claimant. 3) The sum of N500,000 (FIVE HUNDRED THOUSAND NAIRA) from the 2nd, 3rd and 4th defendants for general damages in that the 2nd and 3rd defendant entered the land and surveyed it without the consent of the clement.
Parties filed and exchanged pleadings.
The learned trial judge after hearing the parties gave judgment inter alia as follows:- "In all, I find more pieces of evidence in support of sale of land by Job Esonu to Smart Ubani then, (sic) against the sale. In the final analysis, the claimant has failed to prove his case since his father had sold the same land in the presence of his 1st Son - 1st defendant. This Suit is therefore explanatory and adventurous and ought to, and is hereby dismissed."
Miffed by the said decision, the appellant on 7/5/2012 filed Notice of Appeal challenging the decision.
1. Whether the Judgment as held by the lower court meets the justice of the case to warrant the Court of Appeal to uphold same.
ARGUMENTS OF PARTIES
* FOR THE APPELLANT
*FOR THE RESPONDENT
HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED, COST N40,000 against the 2nd & 3rd respondent]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. The learned trial Judge after rejecting the Power of Attorney gathered together the photocopy of the cheque issued in the name of JOB ARUKWE ESONU, (which was not proved to have been cashed and given to him) and a letter allegedly written by the 1st Respondent (but denied by 1st Respondent and oral evidence of 4th defendant to prove the terms and contents of the Power of Attorney and the sale). Could all these have taken the place of the rejected power of attorney which defined the size of the land, the terms of the contract and allegedly bore the signature of the parties to the contract?. The answer is No. Such oral evidence could not and cannot be adduced without the evidence of sale of land transaction. The 2nd and 3rd defendant who asserted that there was sale of land did not prove their case.
ii. The meaning of this is that the original ownership of the land in dispute having been conceded by the 2nd and 3rd defendants as that of the father of the claimant and the claim of the claimant of having inherited the land from his mother not having been controverted successfully, the claimants claim at the lower Court should have succeeded.
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The 1st Respondents brief contains essentially the same arguments with the appellants brief. This is wrong. It is the Respondents duty to support the judgment of the lower Court and not to attack it. The 1st Respondent not having filed a cross appeal or a Respondents' notice cannot be seen to attack the judgment which traditionally he should defend. - Awotoye, J.C.A. Richard v. Okechukwu (2017)
Now a rejected exhibit cannot be considered by a Court in its adjudication. It has no probative value. - Awotoye, J.C.A. Richard v. Okechukwu (2017)
Furthermore, once an agreement has been reduced into writing oral evidence will not be admitted to prove or vary or add to the term of the contract which is in writing. - Awotoye, J.C.A. Richard v. Okechukwu (2017)
The end of this brief.
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