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(2017) LPELR-42680(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of July, 2017


Before Their Lordships

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria





Other Citations

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This appeal borders on contract.

This is an Appeal against the Judgment of the Enugu State High Court.

The Appellant and the Respondent are brothers of full blood with the Respondent as the senior. In 1974, the parties embarked upon a property business venture with one of their uncles Mr. Edwin Nwegbu (PW2) who later withdraw voluntarily with a formal agreement to that effect tendered and admitted as Exhibit B. The Appellant and Respondent built a two flat Bungalow in Benin and a two storey four flat with large ware house in Enugu. The Respondent who is the senior brother lives in one flat in Benin while the Appellant lives in one flat in the Enugu property and they share the rents from the other flats equally at yearly intervals and did so from 1987-1996. In 1996, misunderstanding set in and when it grew beyond them, they declared a dispute and referred same voluntarily to their family, clan and town arbitral bodies who all gave decision in line with the reliefs and in favour of the Respondent for Exhibit C, C (1) D, E and F.

The Appellant refused and/or neglected to abide by the concurrent decision of the arbitral families. Hence the action by the Respondent. By a Writ of Summons and statement of claim, the Respondent as Plaintiff claimed against the Appellant as follows:
"a) A declaration that the joint ownership of property venture between the Plaintiff and Defendant has broken down irretrievably.
b) An order dissolving the said Joint Property Ownership Venture.
c) An order for the evaluation and sale of the Joint business venture properties situate at NO. 75 A Kenyetta Street, Awkunanaw, Enugu and NO. 142 A Lepper Mission Road, New Benin City Edo State and the proceeds shared equally between them.
d) An order for the account of all rents collected from September 1996 till date and sharing of same between the Plaintiff and the Defendant."

The Appellant joined issues with the Respondent with a Statement of Defence. The Respondent gave evidence in support of his case and called one witness (PW2). The Appellant gave evidence and called three (3) other witnesses who gave evidence as DW2, DW3 and DW4.

The Appellant confirmed the relationship between himself and the Respondent but said that they rendered accounts to themselves last in 1996 and shared the properties with him owning the building in Enugu and paying over to the Respondent N100,000 to compensate him for the difference in the size of Enugu building (a two storied building) and the one in Benin (a bungalow) in addition to the Respondent owning the property in Benin. The Appellant witnessed that with arbitral interventions, the agreed sum changed from N100,000:00 to N800,000 and finally to N1.5 Million. Appellant admitted that these sums were not based on any valuation report. That there was no document of any agreement except Exhibit K between him and the Respondent that he paid any amount to the Respondent so that the building in Enugu would become his own.

On conclusion of the trial, the learned trial Judge found in favour of the Respondent granting all his reliefs which border on dissolution of the partnership and sale/division of assets. Dissatisfied with the Judgment of the High Court, the Appellant appealed to the Court of Appeal.

The Appellant nominated two issues for determination, they are:
"a) Whether in view of Exhibit 'K' the Appellant and Respondent has not taken their financial accounting and shared the two buildings in Benin and Enugu between them to warrant the trial Court to have granted the reliefs claimed in Paragraph 29 of the statement of claim.
b) Whether on the totality of the evidence tendered in the suit, the Plaintiff Respondent proved entitlements to the reliefs as contained in Paragraph 29 of his statement of claim."
The Respondent formulated almost similar issues for determination:-
i. Whether the learned trial Judge's interpretation of Exhibit K is right.
ii. Whether the learned trial Judge was right in its holding that the Respondent proved its case and entitlement to the reliefs on the balance of probabilities.
On the whole, the Court held that the appeal lacks merit and it was accordingly dismissed.

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