Justice and the Nigerian Judiciary came to the rescue of a Nigerian-American, Mr. Imokhuede Ohikhuare, as the Court of Appeal, Abuja has ruled that he is the rightful owner of Plot No 1809, Asokoro, Abuja which former Nigeria’s Ambassador to South Africa, Alhaji Shehu Malami laid claims to and had purportedly transferred ownership to another businessman, Sir Emeka Offor, via an irrevocable power of attorney.
In a landmark judgment in Suit No CA/A/370/2012 delivered on Thursday May 28, 2015 by Justice Mohammed Mustapha, JCA and concurred to by Justices Tinuade Akomolafe-Wilson, JCA and Tani Yusuf Hassan, JCA, the Appeal Court resolved four of the five issues for determination in the suit in favour of Mr Ohikhuare.
Subsequently, the Appeal Court declared that Mr. Ohikhuare’s “appeal therefore succeeds, perforce, and is allowed; judgment of the trial High Court of the Federal Capital Territory, Abuja in Suit No: FCT/HC/CV/105/2010, and delivered by Honourable Justice M.S. Umar on the 17th day of May 2012 is hereby set aside, with N30,000 for the appellant, against the 1st to 5th respondent.”
In 2006, Mr. Ohikhuare bought Plot No 1809, Asokoro in dispute for the sum of N50 million, perfected all instruments on it and built residential apartments valued at about N1 billion on the land. Between the time Mr. Ohikhuare bought the land, built the apartments and moved in with his family – four years – the first and fifth respondents in the appeal, that is Ambassador Shehu Malami and Sir Emeka Offor, their privies or agent did not lay claims to Plot 1809 Asokoro.
Mr. Ohikhuare was living with his family in the property until he was allegedly ejected with force from it, on the strength of a verdict by Judge A.S. Umar of an Abuja High Court.
In his amended notice of appeal, Mr. Ohikhuare, through his lead counsel, Paul Erokoro (SAN), asked the Court of Appeal to determine “whether the lower court was right in its findings that the appellant was a bona fide purchaser for value without notice; whether the plea of larches and acquiescence was not available to the appellant against the 1st respondent (Malami) having regard to the conduct of the 1st respondent and all the circumstances of this case; whether the learned trial judge’s failure to evaluate and consider key pieces of evidence favourable to the appellant did not amount to a denial of fair hearing; whether there being no proper plaintiff, the trial court had jurisdiction to determine the matter; and whether the proceedings and judgment of the court were not vitiated by fraud, the plaintiff having falsely misrepresented in his pleading and testimony that he was claiming the land for himself. when, as subsequently revealed by Exhibit IM06, IM07, IM08, IM09, IMO10 and IMO10A, he was not.”
After a thorough review of evidence before it and findings on the first issue for determination, the Appeal Court justices resolved it “in favour of the appellant and against the respondents.”
Ruling on issue two, the Court of Appeal stated: “The trial court was in error therefore, in the considered opinion of this court, in dismissing the defence of larches and acquiescence set up by the appellant at the trial; this issue is accordingly resolved in favour of the appellant and against the respondents.”
On the third issue for determination, the Appeal Court stated that it was “satisfied that the appellant’s right to fair hearing was breached by the failure of trial court to consider the evidence of the three defence witnesses, showing that there was no fence on the land in dispute” at the time the appellant bought it.
Resolving the fourth issue of whether there was a proper plaintiff at the lower court in favour of Mr. Ohikhuare, the Appeal Court ruled that Malami “no longer had the power to initiate the proceedings at the lower court for himself; because it is settled that an Irrevocable Power of Attorney given for valuable consideration robs the donor of power to exercise any of the powers conferred on the donee.”
On the fifth and last issue for determination, however, the Appeal Court observed that “while there may have been misrepresentation” on the part of Malami in trying to assist Offor to “perfect his title and register his interest” on Plot 1809, “there is no evidence of fraud proved to the satisfaction of this court”. It therefore resolved the fifth issue “in favour of the respondent.”
Thereafter, the Appeal Court declared that Mr. Ohikhuare’s “appeal therefore succeeds, perforce, and is allowed; judgment of the trial High Court of the Federal Capital Territory, Abuja in Suit No: FCT/HC/CV/105/2010, and delivered by Honourable Justice M.S. Umar on the 17th day of May 2012 is hereby set aside, with N30,000 for the appellant, against the 1st to 5th respondent.”
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